Republic of the Philippines

SUPREME COURT
Baguio City
SECOND DIVISION
A.M. No. RTJ-09-2200
April 2, 2014
(formerly OCA I.P.I. No. 08-2834-RTJ)
ANTONIO M. LORENZANA, Complainant,
vs.
JUDGE MA. CECILIA I. AUSTRIA, Regional Trial Court, Branch 2,
Batangas City, Respondent.
DECISION
BRION, J.:
We resolve in this Decision the administrative complaints1 filed by Antonio M.
Lorenzana (complainant) against Judge Ma. Cecilia I. Austria (respondent),
Regional Trial Court (RTC), Branch 2, Batangas City.
The records show that the administrative complaints arose from the case "In
the Matter of the Petition to have Steel Corporation of the Philippines Placed
under Corporate Rehabilitation with Prayer for the Approval of the Proposed
Rehabilitation Plan," docketed as SP. Proc. No. 06-7993, where the
respondent was the presiding judge. The complainant was the Executive
Vice President and Chief Operating Officer of Steel Corporation of the
Philippines (SCP), a company then under rehabilitation proceedings.
i. Complaint
In his verified complaint dated January 21, 2008, the complainant alleged
that in the course of SP. Proc. No. 06-7993, the respondent committed
Gross Ignorance of the Law, Grave Abuse of Authority, Gross Misconduct,
Grave Incompetence, Irregularity in the Performance of Duty, Grave Bias
and Partiality, Lack of Circumspection, Conduct Unbecoming of a Judge,

Failure to Observe the Reglementary Period and Violation of the Code of

Professional Responsibility, as shown by the following instances:
1. The respondent appointed Atty. Santiago T. Gabionza, Jr. as
rehabilitation receiver over SCPs objections and despite serious
conflict of interest in being the duly appointed rehabilitation receiver
for SCP and, at the same time, the external legal counsel of most of
SCPs creditors; he is also a partner of the law firm that he engaged
as legal adviser.
2. The respondent conducted informal meetings (which she termed
as "consultative meetings" in her Order2 dated May 11, 2007) in
places outside her official jurisdiction (i.e., a first class golf club, a
hotel and sports club facilities in Metro Manila) and where she
arbitrarily dictated the terms, parameters and features of the
rehabilitation plan she wanted to approve for SCP. She also
announced in the meetings that she would prepare the
rehabilitation plan for SCP.
3. The modified rehabilitation plan submitted by Atty. Gabionza is a
replica of what the respondent dictated to him. Thus, the
respondent exceeded the limits of her authority and effectively
usurped and pre-empted the rehabilitation receivers exercise of
functions.
4. The respondent ordered that the proceedings of the informal
meetings be off-record so that there would be no record that she
had favored Equitable-PCI Bank (EPCIB).
5. The respondent had secret meetings and communications with
EPCIB to discuss the case without the knowledge and presence of
SCP and its creditors.
6. The respondent appointed Gerardo Anonas (Anonas) as Atty.
Gabionzas financial adviser and, at the same time, as her financial
adviser to guide her in the formulation and development of the
rehabilitation plan, for a fee of P3.5M at SCPs expense. Anonas is
also the cousin-in-law of the managing partner of Atty. Gabionzas
law firm.

7. The respondent encouraged EPCIB to raise complaints or

accusations against SCP, leading to EPCIBs filing of a motion to
create a management committee.
8. When requested to conduct an evidentiary meeting and to issue
a subpoena (so that SCP could confront EPCIBs witnesses to
prove the allegation that there was a need for the creation of a
management committee), the respondent denied SCPs requests
and delayed the issuance of the order until the last minute.
9. At the hearing of September 14, 2007, the respondent
intimidated SCPs counsel, Atty. Ferdinand Topacio; blocked his
every attempt to speak; refused to recognize his appearances in
court; and made condescending and snide remarks.
10. The respondent failed to observe the reglementary period
prescribed by the Interim Rules of Procedure on Corporate
Rehabilitation (Rules). She approved the rehabilitation plan beyond
the 180 days given to her in the Rules, without asking for
permission to extend the period from the Supreme Court (SC).
11. The respondent erroneously interpreted and applied Section 23,
Rule 4 of the Rules (the courts power to approve the rehabilitation
plan) to include the power to amend, modify and alter it.
12. The respondent took a personal interest and commitment to
decide the matter in EPCIBs favor and made comments and
rulings in the proceedings that raised concerns regarding her
impartiality.
13. The respondent adamantly refused to inhibit herself and
showed special interest and personal involvement in the case.
ii. Supplemental Complaint
The complainant likewise filed a supplemental complaint3 dated April 14,
2008 where he alleged that the respondent committed an act of impropriety
when she displayed her photographs in a social networking website called
"Friendster" and posted her personal details as an RTC Judge, allegedly for
the purpose of finding a compatible partner. She also posed with her upper

body barely covered by a shawl, allegedly suggesting that nothing was worn
underneath except probably a brassiere.
The Office of the Court Administrator (OCA) in its 1st Indorsement 4 dated
March 18, 2008, referred the complaints to the respondent for comment.
a. Comment to January 21, 2008 Complaint
The respondent vehemently denied the allegations against her. While she
admitted that she crafted a workable, feasible rehabilitation plan best suited
for SCP, she maintained that she did so only to render fairness and equity to
all the parties to the rehabilitation proceedings. She also submitted that if
indeed she erred in modifying the rehabilitation plan, hers was a mere error
of judgment that does not call for an administrative disciplinary action.
Accordingly, she claimed that the administrative complaints were premature
because judicial remedies were still available.5
The respondent also argued that the rules do not prohibit informal meetings
and conferences. On the contrary, she argued that informal meetings are
even encouraged in view of the summary and non-adversarial nature of
rehabilitation proceedings. Since Section 21, Rule 4 of the Rules 6 gives the
rehabilitation receiver the power to meet with the creditors, then there is all
the more reason for the rehabilitation judge, who has the authority to
approve the plan, to call and hold meetings with the parties. She also
pointed out that it was SCP which suggested that informal meetings be
called and that she only agreed to hold these meetings on the condition that
all the parties would attend.
As to her alleged failure to observe the reglementary period, she contended
that she approved the rehabilitation plan within the period prescribed by law.
She argued that the matter of granting extension of time under Section 11,
Rule 4 of the Rules7 pertains not to the SC, but to the rehabilitation court.
The respondent likewise refuted the allegations of bias and partiality. First,
she claimed that her denial of the complainants motion for inhibition was not
due to any bias or prejudice on her part but due to lack of basis. Second,
she argued that her decision was not orchestrated to favor EPCIB, as
evidenced by the fact that EPCIP itself (as some other creditors did)
promptly appealed her decision to the Court of Appeals (CA). Third, she did

not remove Atty. Gabionza as SCPs rehabilitation receiver because she

disagreed that the grounds the complainant raised warranted his removal.
She also found no merit to the allegation of conflict of interest. Lastly, she
maintained that the rest of the complainants allegations were not
substantiated and corroborated by evidence.

On November 13, 2009, Justice Marlene Gonzales-Sison, the Investigating

Justice, conducted a hearing, followed by the submission of memoranda by
both parties. In her January 4, 2010 Report and Recommendation,15 Justice
Gonzales-Sison ruled that the complaints were partly meritorious. She found
that the issues raised were judicial in nature since these involved the
respondents appreciation of evidence.

The respondent further alleged that she did not gravely abuse her authority
in not issuing a subpoena as Section 1, Rule 3 of the Interim Rules on
Corporate Rehabilitation of the Rules specifically states that the court may
decide matters on the basis of affidavits and other documentary evidence.

She also added that while the CA resolved to set aside the respondents
decision in the rehabilitation proceedings, it was not by reason of her
ignorance of the law or abuse of authority, but because the rehabilitation
plan could no longer be implemented in view of SCPs financial predicament.

On the allegation of conflict of interest, she maintained that the allegations

were not proven and substantiated by evidence. Finally, the respondent also
believed that there was nothing improper in expressing her ideas during the
informal meetings.

On the allegation of grave bias and partiality in handling the rehabilitation

proceedings, Justice Gonzales-Sison ruled that the complainant failed to
present any clear and convincing proof that the respondent intentionally and
deliberately acted against SCPs interests; the complaint merely relied on his
opinions and surmises.

b. Comment to April 14, 2008 Supplemental Complaint

8

In her comment on the supplemental complaint, the respondent submitted

that the photos she posted in the social networking website "Friendster"
could hardly be considered vulgar or lewd. She added that an "offshouldered" attire is an acceptable social outfit under contemporary
standards and is not forbidden. She further stated that there is no prohibition
against attractive ladies being judges; she is proud of her photo for having
been aesthetically made. Lastly, she submitted that the ruling of the Court in
the case of Impao v. Judge Makilala9 should not be applied to her case since
the facts are different.
10

On July 4, 2008, the complainant filed a reply, insisting that the

respondents acts of posting "seductive" pictures and maintaining a
"Friendster" account constituted acts of impropriety, in violation of Rules
2.01,11 2.0212 and 2.03,13 Canon 2 of the Code of Judicial Conduct.
In a Resolution14 dated September 9, 2009, the Court re-docketed the
complaints as regular administrative matters, and referred them to the CA for
investigation, report and recommendation.
The CAs Report and Recommendation

On the matter of the respondents inhibition, she noted that in cases not
covered by the rule on mandatory inhibition, the decision to inhibit lies within
the discretion of the sitting judge and is primarily a matter of conscience.
With respect to the respondents informal meetings, Justice Gonzales-Sison
found nothing irregular despite the out-of-court meetings as these were
agreed upon by all the parties, including SCPs creditors. She also found
satisfactory the respondents explanation in approving the rehabilitation plan
beyond the 180-day period prescribed by the Rules.
The foregoing notwithstanding, Justice Gonzales-Sison noted the
respondents unnecessary bickering with SCPs legal counsel and ruled that
her exchanges and utterances were reflective of arrogance and superiority.
In the words of the Justice Gonzales-Sison:
Rather than rule on the manifestations of counsels, she instead brushed off
the matter with what would appear to be a conceited show of a prerogative
of her office, a conduct that falls below the standard of decorum expected of
a judge. Her statements appear to be done recklessly and were uncalled for.
xxx. Section 6[,] Canon 6 of the New Code of Judicial Conduct for the
Philippine Judiciary states that: judges shall maintain order and decorum in
all proceedings before the court and be patient, dignified and courteous in

relation to litigants, witnesses, lawyers and others whom the judge deals in
an official capacity. Judicial decorum requires judges to be temperate in their
language at all times. Failure on this regard amounts to a conduct
unbecoming of a judge, for which Judge Austria should be held liable.16
On the respondents Friendster account, she believes that her act of
maintaining a personal social networking account (displaying photos of
herself and disclosing personal details as a magistrate in the account)
even during these changing times when social networking websites seem to
be the trend constitutes an act of impropriety which cannot be legally
justified by the publics acceptance of this type of conduct. She explained
that propriety and the appearance of propriety are essential to the
performance of all the activities of a judge and that judges shall conduct
themselves in a manner consistent with the dignity of the judicial office.
Finally, Justice Gonzales-Sison noted the CAs May 16, 2006 Decision 17 in
CA-G.R. SP No. 100941 finding that the respondent committed grave abuse
of discretion in ordering the creation of a management committee without
first conducting an evidentiary hearing in accordance with the procedures
prescribed under the Rules. She ruled that such professional incompetence
was tantamount to gross ignorance of the law and procedure, and
recommended a fine of P20,000.00. She also recommended that the
respondent be admonished for failing to observe strict propriety and judicial
decorum required by her office.
The Action and Recommendation of the OCA
In its Memorandum18 dated September 4, 2013, the OCA recommended the
following:
RECOMMENDATION: It is respectfully recommended for the consideration
of the Honorable Court that:
1) the Report dated January 4, 2010 of Investigating Justice
Marlene Gonzales-Sison be NOTED;
2) respondent Judge Ma. Cecilia I. Austria, Branch 2, Regional Trial
Court, Batangas City, Batangas, be found GUILTY of conduct
unbecoming a judge and for violation of Section 6, Canon 4 of the
New Code of Judicial Conduct;

3) respondent Judge Austria be FINED in the amount of Twenty

Thousand Pesos (Php20,000.00); and
4) respondent Judge Austria be ADMONISHED to refrain from
further acts of impropriety with a stern warning that a repetition of
the same or any similar act will be dealt with more severely.19
In arriving at its recommendation the OCA found that the respondent was not
guilty of gross ignorance of the law as the complainant failed to prove that
her orders were motivated by bad faith, fraud, dishonesty or corruption.
The OCA also found that the charges of bias and partiality in handling the
rehabilitation proceedings were not supported by evidence. It accepted the
respondents explanation in the charge of failure to observe the
reglementary period.
Lastly, the OCA maintained that the allegations of grave abuse of authority
and gross incompetence are judicial in nature, hence, they should not be the
subject of disciplinary action. On the other hand, on allegations of conduct
unbecoming of a judge, violation of the Code of Professional Responsibility
(Code), lack of circumspection and impropriety, the OCA shared Justice
Gonzales-Sisons observations that the respondents act of posting
seductive photos in her Friendster account contravened the standard of
propriety set forth by the Code.
The Courts Ruling
We agree with the recommendation of both Justice Gonzales-Sison and the
OCA for the imposition of a fine on the respondent but modify the amount as
indicated below. We sustain Justice Gonzales-Sisons finding of gross
ignorance of the law in so far as the respondent ordered the creation of a
management committee without conducting an evidentiary hearing. The
absence of a hearing was a matter of basic due process that no magistrate
should be forgetful or careless about.
On
the
Charges
of
Grave
Abuse
Irregularity
in
the
Performance
of
Bias and Partiality; and Lack of Circumspection

of
Duty;

Authority;
Grave

It is well settled that in administrative cases, the complainant bears the onus
of proving the averments of his complaint by substantial evidence. 20 In the
present case, the allegations of grave abuse of authority, irregularity in the
performance of duty, grave bias and partiality, and lack of circumspection are
devoid of merit because the complainant failed to establish the respondents
bad faith, malice or ill will. The complainant merely pointed to circumstances
based on mere conjectures and suppositions. These, by themselves,
however, are not sufficient to prove the accusations. "[M]ere allegation is not
evidence and is not equivalent to proof."21

respondents predisposition to decide the case in favor of one party. This

kind of evidence would have helped its cause. The bare allegations of the
complainant cannot overturn the presumption that the respondent acted
regularly and impartially. We thus conclude that due to the complainants
failure to establish with clear, solid, and convincing proof, the allegations of
bias and partiality must fail.

"[U]nless the acts were committed with fraud, dishonesty, corruption, malice
or ill-will, bad faith, or deliberate intent to do an injustice, [the] respondent
judge may not be held administratively liable for gross misconduct,
ignorance of the law or incompetence of official acts in the exercise of
judicial functions and duties, particularly in the adjudication of cases."22

We agree with the findings of the OCA that not every error or mistake of a
judge in the performance of his official duties renders him liable. 27 "[A]s a
matter of policy, in the absence of fraud, dishonesty or corruption, the acts of
a judge in his judicial capacity are not subject to disciplinary action even
though such acts are erroneous."28

Even granting that the respondent indeed erred in the exercise of her judicial
functions, these are, at best, legal errors correctible not by a disciplinary
action, but by judicial remedies that are readily available to the complainant.
"An administrative complaint is not the appropriate remedy for every
irregular or erroneous order or decision issued by a judge where a judicial
remedy is available, such as a motion for reconsideration or an
appeal."23Errors committed by him/her in the exercise of adjudicative
functions cannot be corrected through administrative proceedings but should
be assailed instead through judicial remedies.24

In the present case, what was involved was the respondents application of
Section 23, Rule 4 of the Rules, which provides:

On the Charges of Grave Bias and Partiality

We likewise find the allegations of bias and partiality on the part of the
respondent baseless. The truth about the respondents alleged partiality
cannot be determined by simply relying on the complainants verified
complaint. Bias and prejudice cannot be presumed, in light especially of a
judges sacred obligation under his oath of office to administer justice without
respect to the person, and to give equal right to the poor and rich. 25 There
should be clear and convincing evidence to prove the charge; mere
suspicion of partiality is not enough.26
In the present case, aside from being speculative and judicial in character,
the circumstances cited by the complainant were grounded on mere opinion
and surmises. The complainant, too, failed to adduce proof indicating the

On
the
Charges
and Gross Ignorance of the Law

of

Grave

Incompetence

Sec. 23. Approval of the Rehabilitation Plan. - The court may approve a
rehabilitation plan even over the opposition of creditors holding a majority of
the total liabilities of the debtor if, in its judgment, the rehabilitation of the
debtor is feasible and the opposition of the creditors is manifestly
unreasonable.29
The respondent approved the rehabilitation plan submitted by Atty.
Gabionza, subject to the modifications she found necessary to make the
plan viable. The complainant alleged that in modifying the plan, she
exceeded her authority and effectively usurped the functions of a
rehabilitation receiver. We find, however, that in failing to show that the
respondent was motivated by bad faith or ill motives in rendering the
assailed decision, the charge of gross ignorance of the law against her
should be dismissed. "To [rule] otherwise would be to render judicial office
untenable, for no one called upon to try the facts or interpret the law in the
process of administering justice can be infallible in his judgment."30
To constitute gross ignorance of the law, it is not enough that the decision,
order or actuation of the judge in the performance of his official duties is
contrary to existing law and jurisprudence. It must also be proven that he

was moved by bad faith, fraud, dishonesty or corruption 31 or had committed

an error so egregious that it amounted to bad faith.
In the present case, nothing in the records suggests that the respondent was
motivated by bad faith, fraud, corruption, dishonesty or egregious error in
rendering her decision approving the modified rehabilitation plan. Besides
his bare accusations, the complainant failed to substantiate his allegations
with competent proof. Bad faith cannot be presumed 32 and this Court cannot
conclude that bad faith intervened when none was actually proven.
With respect to the action of the respondent in
management committee without first conducting
the purpose, however, we find the error to be so
bad faith, leading to the conclusion of gross
charged.

ordering the creation of a

an evidentiary hearing for
egregious as to amount to
ignorance of the law, as

need not observe due care in the performance of his/her official

functions.35 When a basic principle of law is involved and when an error is so
gross and patent, error can produce an inference of bad faith, making the
judge liable for gross ignorance of the law.36 On this basis, we conclude that
the respondents act of promptly ordering the creation of a management
committee, without the benefit of a hearing and despite the demand for one,
was tantamount to punishable professional incompetence and gross
ignorance of the law.
On
the
Ground
the Reglementary Period

of

Failure

to

Observe

On the respondents failure to observe the reglementary period prescribed

by the Rules, we find the respondents explanation to be satisfactory.
Section 11, Rule 4 of the previous Rules provides:

Due process and fair play are basic requirements that no less than the
Constitution demands. In rehabilitation proceedings, the parties must first be
given an opportunity to prove (or disprove) the existence of an imminent
danger of dissipation, loss, wastage or destruction of the debtor-companys
assets and properties that are or may be prejudicial to the interest of minority
stockholders, parties-litigants or the general public. 33 The rehabilitation court
should hear both sides, allow them to present proof and conscientiously
deliberate, based on their submissions, on whether the appointment of a
management receiver is justified. This is a very basic requirement in every
adversarial proceeding that no judge or magistrate can disregard.
In SCPs rehabilitation proceedings, SCP was not given at all the opportunity
to present its evidence, nor to confront the EPCIB witnesses. Significantly,
the CA, in its May 16, 2006 decision, found that the respondents act of
denying SCP the opportunity to disprove the grounds for the appointment of
a management committee was tantamount to grave abuse of discretion. As
aptly observed by Justice Gonzales-Sison:
[T]he acts of the respondent judge (Judge Austria) in creating a MANCOM
without observing the procedures prescribed under the IRPGICC clearly
constitute grave abuse of discretion amounting to excess of jurisdiction.34
Indeed, while a judge may not be held liable for gross ignorance of the law
for every erroneous order that he renders, this does not mean that a judge

Sec. 11. Period of the Stay Order. xxx

The petition shall be dismissed if no rehabilitation plan is approved by the
court upon the lapse of one hundred eighty (180) days from the date of the
initial hearing. The court may grant an extension beyond this period only if it
appears by convincing and compelling evidence that the debtor may
successfully be rehabilitated. In no instance, however, shall the period for
approving or disapproving a rehabilitation plan exceed eighteen (18) months
from the date of filing of the petition.37
Under this provision, the matter of who would grant the extension beyond
the 180-day period carried a good measure of ambiguity as it did not indicate
with particularity whether the rehabilitation court could act by itself or
whether Supreme Court approval was still required. Only recently was this
uncertainty clarified when A.M. No. 00-8-10-SC, the 2008 Rules of
Procedure on Corporate Rehabilitation, took effect.
Section 12, Rule 4 of the Rules provides:
Section 12. Period to Decide Petition. - The court shall decide the petition
within one (1) year from the date of filing of the petition, unless the court, for
good cause shown, is able to secure an extension of the period from the
Supreme Court.38

Since the new Rules only took effect on January 16, 2009 (long after the
respondents approval of the rehabilitation plan on December 3, 2007), we
find no basis to hold the respondent liable for the extension she granted and
for the consequent delay.
On
the
Unbecoming of a Judge

Ground

of

Accordingly, the respondents unnecessary bickering with SCPs legal

counsel, her expressions of exasperation over trivial procedural and
negligible lapses, her snide remarks, as well as her condescending attitude,
are conduct that the Court cannot allow. They are displays of arrogance and
air of superiority that the Code abhors.

Conduct

On the allegation of conduct unbecoming of a judge, Section 6, Canon 6 of

the New Code of Judicial Conduct states that:
SECTION 6. Judges shall maintain order and decorum in all proceedings
before the court and be patient, dignified and courteous in relation to
litigants, witnesses, lawyers and others with whom the judge deals in an
official capacity. Judges shall require similar conduct of legal
representatives, court staff and others subject to their influence, direction or
control.39
A judge should always conduct himself in a manner that would preserve the
dignity, independence and respect for himself/herself, the Court and the
Judiciary as a whole. He must exhibit the hallmark judicial temperament of
utmost sobriety and self-restraint.40 He should choose his words and
exercise more caution and control in expressing himself. In other words, a
judge should possess the virtue of gravitas.41

Records and transcripts of the proceedings bear out that the respondent
failed to observe judicial temperament and to conduct herself irreproachably.
She also failed to maintain the decorum required by the Code and to use
temperate language befitting a magistrate. "As a judge, [she] should ensure
that [her] conduct is always above reproach and perceived to be so by a
reasonable observer. [She] must never show conceit or even an appearance
thereof, or any kind of impropriety."44
Section 1, Canon 2 of the New Code of Judicial Conduct states that:
SECTION 1. Judges shall ensure that not only is their conduct above
reproach, but that it is perceived to be so in the view of a reasonable
observer.
In these lights, the respondent exhibited conduct unbecoming of a judge and
thus violated Section 6, Canon 6 and Section 1, Canon 2 of the New Code of
Judicial Conduct.
On the Ground of Impropriety

As held in De la Cruz (Concerned Citizen of Legazpi City) v. Judge

Carretas,42 a judge should be considerate, courteous and civil to all persons
who come to his court; he should always keep his passion guarded. He can
never allow it to run loose and overcome his reason. Furthermore, a
magistrate should not descend to the level of a sharp-tongued, ill-mannered
petty tyrant by uttering harsh words, snide remarks and sarcastic comments.
Similarly in Attys. Guanzon and Montesino v. Judge Rufon, 43 the Court
declared that "although respondent judge may attribute his intemperate
language to human frailty, his noble position in the bench nevertheless
demands from him courteous speech in and out of court.
Judges are required to always be temperate, patient and courteous, both in
conduct and in language."

We are not unaware of the increasing prevalence of social networking sites

in the Internet a new medium through which more and more Filipinos
communicate with each other.45 While judges are not prohibited from
becoming members of and from taking part in social networking activities,
we remind them that they do not thereby shed off their status as judges.
They carry with them in cyberspace the same ethical responsibilities and
duties that every judge is expected to follow in his/her everyday activities. It
is in this light that we judge the respondent in the charge of impropriety when
she posted her pictures in a manner viewable by the public.
Lest this rule be misunderstood, the New Code of Judicial Conduct does not
prohibit a judge from joining or maintaining an account in a social networking
site such as Friendster. Section 6, Canon 4 of the New Code of Judicial
Conduct recognizes that judges, like any other citizen, are entitled to

freedom of expression. This right "includes the freedom to hold opinions

without interference and impart information and ideas through any media
regardless of frontiers."46 Joining a social networking site is an exercise of
ones freedom of expression. The respondent judges act of joining
Friendster is, therefore, per se not violative of the New Code of Judicial
Conduct.

Thus, it may be acceptable for the respondent to show a picture of herself in

the attire she wore to her family and close friends, but when she made this
picture available for public consumption, she placed herself in a situation
where she, and the status she holds as a judge, may be the object of the
publics criticism and ridicule. The nature of cyber communications,
particularly its speedy and wide-scale character, renders this rule necessary.

Section 6, Canon 4 of the New Code of Judicial Conduct, however, also

imposes a correlative restriction on judges: in the exercise of their freedom
of expression, they should always conduct themselves in a manner that
preserves the dignity of the judicial office and the impartiality and
independence of the Judiciary.

We are not also unaware that the respondents act of posting her photos
would seem harmless and inoffensive had this act been done by an ordinary
member of the public. As the visible personification of law and justice,
however, judges are held to higher standards of conduct and thus must
accordingly comport themselves.47

This rule reflects the general principle of propriety expected of judges in all
of their activities, whether it be in the course of their judicial office or in their
personal lives. In particular, Sections 1 and 2 of Canon 4 of the New Code of
Judicial Conduct prohibit impropriety and even the appearance of
impropriety in all of their activities:

This exacting standard applies both to acts involving the judicial office and
personal matters.1wphi1 The very nature of their functions requires
behavior under exacting standards of morality, decency and propriety; both
in the performance of their duties and their daily personal lives, they should
be beyond reproach.48 Judges necessarily accept this standard of conduct
when they take their oath of office as magistrates.

SECTION 1. Judges shall avoid impropriety and the appearance of

impropriety in all of their activities.
SECTION 2. As a subject of constant public scrutiny, judges must accept
personal restrictions that might be viewed as burdensome by the ordinary
citizen and should do so freely and willingly. In particular, judges shall
conduct themselves in a way that is consistent with the dignity of the judicial
office.
Based on this provision, we hold that the respondent disregarded the
propriety and appearance of propriety required of her when she posted
Friendster photos of herself wearing an "off-shouldered" suggestive dress
and made this available for public viewing.
To restate the rule: in communicating and socializing through social
networks, judges must bear in mind that what they communicate
regardless of whether it is a personal matter or part of his or her judicial
duties creates and contributes to the peoples opinion not just of the judge
but of the entire Judiciary of which he or she is a part. This is especially true
when the posts the judge makes are viewable not only by his or her family
and close friends, but by acquaintances and the general public.

Imposable Penalty
Under Section 8, Rule 140 of the Rules of Court, as amended by A.M. No.
01-8-10-SC, gross ignorance of the law or procedure is classified as a
serious charge. Under Section 11(A) of the same Rule, a serious charge
merits any of the following sanctions:
1. Dismissal from the service, forfeiture of all or part of the benefits
as the Court may determine, and disqualification from
reinstatement or appointment to any public office, including
government-owned or controlled corporations; provided, however,
that the forfeiture of benefits shall in no case include accrued leave
credits;
2. Suspension from office without salary and other benefits for more
than three (3), but not exceeding six (6), months; or
3. A fine of more than P20,000.00, but not exceeding P40,000.00.

On the other hand, conduct unbecoming of a judge is classified as a light

offense under Section 10, Rule 140 of the Rules of Court. It is penalized
under Section 11(C) thereof by any of the following: (1) A fine of not less
thanP1,000.00 but not exceeding P10,000.00; (2) Censure; (3) Reprimand;
and ( 4) Admonition with warning.

Before us is a Complaint for the disbarment or suspension or any other

disciplinary action against Atty. Alberto C. Magulta. Filed by Dominador P.
Burbe with the Commission on Bar Discipline of the Integrated Bar of the
Philippines (IBP) on June 14, 1999, the Complaint is accompanied by a
Sworn Statement alleging the following:

Judge Austria's record shows that she had never been administratively
charged or found liable for any wrongdoing in the past. Since this is her first
offense, the Court finds it fair and proper to temper the penalty for her
offenses.

xxxxxxxxx

WHEREFORE, the Court finds Judge Ma. Cecilia I. Austria guilty of GROSS
IGNORANCE OF THE LAW for which she is FINED Twenty-One Thousand
Pesos (P21,000,00). Judge Austria is likewise hereby ADMONISHED to
refrain from further acts of IMPROPRIETY and to refrain from CONDUCT
UNBECOMING OF A JUDGE, with the STERN WARNING that a repetition
of the same or similar acts shall be dealt with more severely.
SO ORDERED.

[AC No. 99-634. June 10, 2002]

vs. ATTY.

ALBERTO

C.

DECISION
PANGANIBAN, J.:
After agreeing to take up the cause of a client, a lawyer owes fidelity to
both cause and client, even if the client never paid any fee for the attorneyclient relationship. Lawyering is not a business; it is a profession in which
duty to public service, not money, is the primary consideration.
The Case

That consequent to such agreement, Atty. Alberto C. Magulta prepared for

me the demand letter and some other legal papers, for which services I have
accordingly paid; inasmuch, however, that I failed to secure a settlement of
the dispute, Atty. Magulta suggested that I file the necessary complaint,
which he subsequently drafted, copy of which is attached as Annex A, the
filing fee whereof will require the amount of Twenty Five Thousand Pesos
(P25,000.00);
That having the need to legally recover from the parties to be sued I, on
January 4, 1999, deposited the amount of P25,000.00 to Atty. Alberto C.
Magulta, copy of the Receipt attached as Annex B, upon the instruction that I
needed the case filed immediately;

THIRD DIVISION

DOMINADOR P. BURBE, complainant,

MAGULTA, respondent.

That in connection with my business, I was introduced to Atty. Alberto C.

Magulta, sometime in September, 1998, in his office at the Respicio, Magulta
and Adan Law Offices at 21-B Otero Building, Juan de la Cruz St., Davao
City, who agreed to legally represent me in a money claim and possible civil
case against certain parties for breach of contract;

That a week later, I was informed by Atty. Alberto C. Magulta that the
complaint had already been filed in court, and that I should receive notice of
its progress;
That in the months that followed, I waited for such notice from the court or
from Atty. Magulta but there seemed to be no progress in my case, such that
I frequented his office to inquire, and he would repeatedly tell me just to wait;
That I had grown impatient on the case, considering that I am told to wait
[every time] I asked; and in my last visit to Atty. Magulta last May 25, 1999,
he said that the court personnel had not yet acted on my case and, for my
satisfaction, he even brought me to the Hall of Justice Building at Ecoland,
Davao City, at about 4:00 p.m., where he left me at the Office of the City

Prosecutor at the ground floor of the building and told to wait while he
personally follows up the processes with the Clerk of Court; whereupon,
within the hour, he came back and told me that the Clerk of Court was
absent on that day;
That sensing I was being given the run-around by Atty. Magulta, I decided to
go to the Office of the Clerk of Court with my draft of Atty. Magultas
complaint to personally verify the progress of my case, and there told that
there was no record at all of a case filed by Atty. Alberto C. Magulta on my
behalf, copy of the Certification dated May 27, 1999, attached as Annex C;
That feeling disgusted by the way I was lied to and treated, I confronted Atty.
Alberto C. Magulta at his office the following day, May 28, 1999, where he
continued to lie to with the excuse that the delay was being caused by the
court personnel, and only when shown the certification did he admit that he
has not at all filed the complaint because he had spent the money for the
filing fee for his own purpose; and to appease my feelings, he offered to
reimburse me by issuing two (2) checks, postdated June 1 and June 5,
1999, in the amounts of P12,000.00 and P8,000.00, respectively, copies of
which are attached as Annexes D and E;
That for the inconvenience, treatment and deception I was made to suffer, I
wish to complain Atty. Alberto C. Magulta for misrepresentation, dishonesty
and oppressive conduct;
x x x x x x x x x.[1]
On August 6, 1999, pursuant to the July 22, 1999 Order of the IBP
Commission on Bar Discipline,[2] respondent filed his Answer[3] vehemently
denying the allegations of complainant for being totally outrageous and
baseless. The latter had allegedly been introduced as a kumpadre of one of
the formers law partners. After their meeting, complainant requested him to
draft a demand letter against Regwill Industries, Inc. -- a service for which
the former never paid. After Mr. Said Sayre, one of the business partners of
complainant, replied to this letter, the latter requested that another demand
letter -- this time addressed to the former -- be drafted by respondent, who
reluctantly agreed to do so. Without informing the lawyer, complainant asked
the process server of the formers law office to deliver the letter to the
addressee.

Aside from attending to the Regwill case which had required a threehour meeting, respondent drafted a complaint (which was only for the
purpose of compelling the owner to settle the case) and prepared a
compromise agreement. He was also requested by complainant to do the
following:
1. Write a demand letter addressed to Mr. Nelson Tan
2. Write a demand letter addressed to ALC Corporation
3. Draft a complaint against ALC Corporation
4. Research on the Mandaue City property claimed by complainants
wife
All of these respondent did, but he was never paid for his services by
complainant.
Respondent likewise said that without telling him why, complainant
later on withdrew all the files pertinent to the Regwill case. However, when
no settlement was reached, the latter instructed him to draft a complaint for
breach of contract. Respondent, whose services had never been paid by
complainant until this time, told the latter about his acceptance and legal
fees. When told that these fees amounted to P187,742 because the Regwill
claim was almost P4 million, complainant promised to pay on installment
basis.
On January 4, 1999, complainant gave the amount of P25,000 to
respondents secretary and told her that it was for the filing fee of the Regwill
case. When informed of the payment, the lawyer immediately called the
attention of complainant, informing the latter of the need to pay the
acceptance and filing fees before the complaint could be filed. Complainant
was told that the amount he had paid was a deposit for the acceptance fee,
and that he should give the filing fee later.
Sometime in February 1999, complainant told respondent to suspend
for the meantime the filing of the complaint because the former might be
paid by another company, the First Oriental Property Ventures, Inc., which
had offered to buy a parcel of land owned by Regwill Industries. The

negotiations went on for two months, but the parties never arrived at any
agreement.

We agree with the Commissions recommendation.

Main Issue:

Sometime in May 1999, complainant again relayed to respondent his

interest in filing the complaint. Respondent reminded him once more of the
acceptance fee. In response, complainant proposed that the complaint be
filed first before payment of respondents acceptance and legal fees. When
respondent refused, complainant demanded the return of the P25,000. The
lawyer returned the amount using his own personal checks because their
law office was undergoing extensive renovation at the time, and their office
personnel were not reporting regularly. Respondents checks were accepted
and encashed by complainant.
Respondent averred that he never inconvenienced, mistreated or
deceived complainant, and if anyone had been shortchanged by the
undesirable events, it was he.
The IBPs Recommendation
In its Report and Recommendation dated March 8, 2000, the
Commission on Bar Discipline of the Integrated Bar of the Philippines (IBP)
opined as follows:
x x x [I]t is evident that the P25,000 deposited by complainant with the
Respicio Law Office was for the filing fees of the Regwill complaint. With
complainants deposit of the filing fees for the Regwill complaint, a
corresponding obligation on the part of respondent was created and that was
to file the Regwill complaint within the time frame contemplated by his client,
the complainant. The failure of respondent to fulfill this obligation due to his
misuse of the filing fees deposited by complainant, and his attempts to cover
up this misuse of funds of the client, which caused complainant additional
damage and prejudice, constitutes highly dishonest conduct on his part,
unbecoming a member of the law profession. The subsequent
reimbursement by the respondent of part of the money deposited by
complainant for filing fees, does not exculpate the respondent for his
misappropriation of said funds. Thus, to impress upon the respondent the
gravity of his offense, it is recommended that respondent be suspended from
the practice of law for a period of one (1) year.[4]
The Courts Ruling

Misappropriation of Clients Funds

Central to this case are the following alleged acts of respondent lawyer:
(a) his non-filing of the Complaint on behalf of his client and (b) his
appropriation for himself of the money given for the filing fee.
Respondent claims that complainant did not give him the filing fee for
the Regwill complaint; hence, the formers failure to file the complaint in
court. Also, respondent alleges that the amount delivered by complainant to
his office on January 4, 1999 was for attorneys fees and not for the filing fee.
We are not persuaded. Lawyers must exert their best efforts and ability
in the prosecution or the defense of the clients cause. They who perform that
duty with diligence and candor not only protect the interests of the client, but
also serve the ends of justice. They do honor to the bar and help maintain
the respect of the community for the legal profession. [5] Members of the bar
must do nothing that may tend to lessen in any degree the confidence of the
public in the fidelity, the honesty, and integrity of the profession.[6]
Respondent wants this Court to believe that no lawyer-client
relationship existed between him and complainant, because the latter never
paid him for services rendered. The former adds that he only drafted the said
documents as a personal favor for the kumpadre of one of his partners.
We disagree. A lawyer-client relationship was established from the very
first moment complainant asked respondent for legal advice regarding the
formers business. To constitute professional employment, it is not essential
that the client employed the attorney professionally on any previous
occasion. It is not necessary that any retainer be paid, promised, or charged;
neither is it material that the attorney consulted did not afterward handle the
case for which his service had been sought.
If a person, in respect to business affairs or troubles of any kind,
consults a lawyer with a view to obtaining professional advice or assistance,
and the attorney voluntarily permits or acquiesces with the consultation, then
the professional employment is established.[7]

Likewise, a lawyer-client relationship exists notwithstanding the close

personal relationship between the lawyer and the complainant or the
nonpayment of the formers fees.[8] Hence, despite the fact that complainant
was kumpadre of a law partner of respondent, and that respondent
dispensed legal advice to complainant as a personal favor to
the kumpadre, the lawyer was duty-bound to file the complaint he had
agreed to prepare -- and had actually prepared -- at the soonest possible
time, in order to protect the clients interest. Rule 18.03 of the Code of
Professional Responsibility provides that lawyers should not neglect legal
matters entrusted to them.
This Court has likewise constantly held that once lawyers agree to take
up the cause of a client, they owe fidelity to such cause and must always be
mindful of the trust and confidence reposed in them. [9]They owe entire
devotion to the interest of the client, warm zeal in the maintenance and the
defense of the clients rights, and the exertion of their utmost learning and
abilities to the end that nothing be taken or withheld from the client, save by
the rules of law legally applied.[10]
Similarly unconvincing is the explanation of respondent that the receipt
issued by his office to complainant on January 4, 1999 was erroneous. The
IBP Report correctly noted that it was quite incredible for the office personnel
of a law firm to be prevailed upon by a client to issue a receipt erroneously
indicating payment for something else. Moreover, upon discovering the
mistake -- if indeed it was one -- respondent should have immediately taken
steps to correct the error. He should have lost no time in calling
complainants attention to the matter and should have issued another
receipt indicating the correct purpose of the payment.

The practice of law is a noble calling in which emolument is a byproduct, and

the highest eminence may be attained without making much money.[14]
In failing to apply to the filing fee the amount given by complainant -- as
evidenced by the receipt issued by the law office of respondent -- the latter
also violated the rule that lawyers must be scrupulously careful in handling
money entrusted to them in their professional capacity.[15] Rule 16.01 of the
Code of Professional Responsibility states that lawyers shall hold in trust all
moneys of their clients and properties that may come into their possession.
Lawyers who convert the funds entrusted to them are in gross violation
of professional ethics and are guilty of betrayal of public confidence in the
legal profession.[16] It may be true that they have a lien upon the clients
funds, documents and other papers that have lawfully come into their
possession; that they may retain them until their lawful fees and
disbursements have been paid; and that they may apply such funds to the
satisfaction of such fees and disbursements. However, these considerations
do not relieve them of their duty to promptly account for the moneys they
received. Their failure to do so constitutes professional misconduct.[17] In any
event, they must still exert all effort to protect their clients interest within the
bounds of law.
If much is demanded from an attorney, it is because the entrusted
privilege to practice law carries with it correlative duties not only to the client
but also to the court, to the bar, and to the public. [18]Respondent fell short of
this standard when he converted into his legal fees the filing fee entrusted to
him by his client and thus failed to file the complaint promptly. The fact that
the former returned the amount does not exculpate him from his breach of
duty.

The Practice of Law -- a

Profession, Not a Business
In this day and age, members of the bar often forget that the practice of
law is a profession and not a business.[11] Lawyering is not primarily meant to
be a money-making venture, and law advocacy is not a capital that
necessarily yields profits.[12] The gaining of a livelihood is not a professional
but a secondary consideration.[13] 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.

On the other hand, we do not agree with complainants plea to disbar

respondent from the practice of law. The power to disbar must be exercised
with great caution. Only in a clear case of misconduct that seriously affects
the standing and the character of the bar will disbarment be imposed as a
penalty.[19]
WHEREFORE, Atty. Alberto C. Magulta is found guilty of violating
Rules 16.01 and 18.03 of the Code of Professional Responsibility and is
hereby SUSPENDED from the practice of law for a period of one (1) year,
effective upon his receipt of this Decision. Let copies be furnished all courts

as well as the Office of the Bar Confidant, which is instructed to include a

copy in respondents file.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
A.C. No. 3283 July 13, 1995

RODOLFO MILLARE, petitioner,

vs.
ATTY. EUSTAQUIO Z. MONTERO, respondent.
QUIASON, J.:
This is a complaint for disbarment. Pursuant to paragraph 2, Section 1, Rule
139-B of the Revised Rules of Court, this Court resolved to refer it to the
Integrated Bar of the Philippines (IBP) for investigation, report and
recommendation.
On April 15, 1994, the IBP Board of Governors rendered a decision, finding
respondent guilty of malpractice and recommending that he be suspended
from the practice of law.
I
Pacifica Millare, the mother of the complainant, obtained a favorable
judgment from the Municipal Trial Court, Bangued, Abra (MTC) which
ordered Elsa Dy Co to vacate the premises subject of the ejectment case
(Civil Case No. 844). Co, through respondent as counsel, appealed the
decision to the Regional Trial Court, Branch 11, Bangued, Abra (RTC). She
neither filed a supersedeas bond nor paid the rentals adjudged by the MTC.
The RTC affirmed in toto the decision of the MTC.
The Court of Appeals (CA) dismissed Co's appeal from the decision of the
RTC for failure to comply with Section 22 of B.P. Blg. 129 and Section 22(b)
of the Interim Rules and Guidelines (CA-G.R. CV No. 11404). According to
the CA, Co should have filed a petition for review and not an ordinary appeal
(Rollo, Vol. I, p. 22).
The judgment of the MTC became final and executory on November 19,
1986.
On January 2, 1987, a Manifestation and Motion was filed by respondent as
counsel for Co in CA-G.R. CV No. 11404, arguing that the decisions of the
MTC and the RTC were null and void for being contrary to law, justice and
equity for allowing the lessor to increase by 300% the rentals for an old
house. Respondent, admitting his mistake in filing an ordinary appeal
instead of a petition for review, prayed that he be allowed to file an action for
annulment.
On February 23, 1987, the CA gave due course to respondent's
Manifestation and Motion and let the records remain with it. However, on
November 10, 1987, the said court ordered the records in CA-G.R. CV No.
11404 to be remanded to the court a quo.
On March 9, 1987, respondent filed with the CA a Petition for Annulment of
Decisions and/or Reformation or Novation of Decisions of the MTC and the
RTC (CA-G.R. SP No. 11690), insisting that the decisions were not in
accordance with existing laws and policies. On December 17, 1987, the CA
dismissed the petition for annulment or novation explaining that
. . . , aside from the reliefs provided in these two sections
(Secs. 1 & 2, Rule 38), there is no other means whereby

the defeated party may procure final and executory

judgment to be set aside with a view to the renewal of the
litigation, unless (a) the judgment is void for want of
jurisdiction or lack of due process of law, or (b) it has been
obtained by fraud, . . . . There is no allegation in the
present complaint to the effect that the judgments in the
former cases were secured through fraud (Rollo, Vol. I, p.
35; Emphasis supplied).
On January 15, 1988, respondent filed an Urgent Motion for Reconsideration
and Motion to Set Motion for Reconsideration for Oral Arguments of the CA
decision. The CA denied the motion. Again, respondent requested the CA to
set his Motion For Oral Arguments on April 14, 1988.
In a resolution dated February 12, 1988, the CA denied the Motion for Oral
Argument and in a resolution dated October 18, 1988, denied the motion for
reconsideration of the February 12 Resolution.
Respondent then filed a Petition for Review on Certiorari with this Court
(G.R. No. 86084) questioning the decisions of the MTC and the RTC in favor
of petitioner's mother. In a Resolution dated January 4, 1989, we denied the
petition for having been filed and paid late on December 12, 1988 and
November 12, 1988, respectively. A motion for reconsideration from such
resolution was likewise denied with finality.
Respondent filed a Motion for the Issuance of a Prohibitory or Restraining
Order (dated July 6, 1988) in CA-G.R. SP No. 11690.
On April 12, 1988, the mother of complainant filed a Motion for Execution of
the judgment in Civil Case No. 844. Respondent filed an Opposition to the
Motion for Execution on the ground that the case was still pending review by
the CA in CA-G.R. SP No. 11690 and therefore the motion for execution was
premature. On August 23, 1988, the MTC ordered the issuance of a writ of
execution. Respondent filed a motion for reconsideration, which was denied.
The RTC affirmed the order for the issuance of the writ of execution. Thus, a
writ of execution was issued on October 18, 1988.
On October 26, 1988, respondent filed a special civil action (SP CV No. 624)
with
the
RTC,
Branch
1,
Bangued,
Abra
for certiorari,
prohibition, mandamus with preliminary injunction against the MTC,
Provincial Sheriff and complainant's mother, seeking to annul the writ of
execution issued in MTC Civil Case No. 844 and RTC Civil Case No. 344.
Respondent alleged that the order granting the writ of execution was issued
with grave abuse of discretion amounting to lack of jurisdiction since a
petition to annul the decisions (CA-G.R. SP No. 11690) was still pending with
the CA.
On October 28, 1988, the provincial sheriff, Romulo V. Paredes, deferred the
implementation of the writ of execution until the petition filed in SP CV No.
624 for certiorari was resolved. The CA denied in SP CV No. 624
respondent's Urgent Motion to Set Aside and Declare Null and Void the Writ
of Execution.

From the decision of the RTC, Branch 1, Abra in SP CV No. 624 denying the
Petition for Certiorari, Prohibition,Mandamus with Preliminary Issuance of
Prohibitory Order, respondent again filed an Appeal and/or Review
byCertiorari, Etc. with the CA (CA-G.R. SP No. 17040).
II
We have no reason to reverse the findings of the IBP Board of Governors.
Under Canon 19 of the Code of Professional Responsibility, a lawyer is
required to represent his client "within the bounds of the law." The Code
enjoins a lawyer to employ only fair and honest means to attain the lawful
objectives of his client (Rule 19.01) and warns him not to allow his client to
dictate the procedure in handling the case (Rule 19.03). In short, a lawyer is
not a gun for hire.
Advocacy, within the bounds of the law, permits the attorney to use any
arguable construction of the law or rules which is favorable to his client. But
the lawyer is not allowed to knowingly advance a claim or defense that is
unwarranted under existing law. He cannot prosecute patently frivolous and
meritless appeals or institute clearly groundless actions (Annotated Code of
Professional Responsibility 310 [1979]). Professional rules impose limits on
a lawyer's zeal and hedge it with necessary restrictions and qualifications
(Wolfram, Modern Legal Ethics 579-582 [1986]).
Under Canon 12 of the Code of Professional Responsibility, a lawyer is
required to exert every effort and consider it his duty to assist in the speedy
and efficient administration of justice. Implementing said Canon are the
following rules:
Rule 12.02. A lawyer shall not file multiple actions
arising from the same cause.
xxx xxx xxx
Rule 12.04. A lawyer shall not unduly delay a case,
impede the execution of a judgment or misuse court
processes.
It is unethical for a lawyer to abuse or wrongfully use the judicial process,
like the filing of dilatory motions, repetitious litigation and frivolous appeals
for the sole purpose of frustrating and delaying the execution of a judgment
(Edelstein, The Ethics of Dilatory Motions Practice: Time for Change, 44
Fordham L. Rev. 1069 [1976]; Overmeyer v. Fidelista and Deposit Co., 554
F. 2d 539, 543 [2d Cir. 1971]).
The rights of respondent's client in Civil Case No. 844 of the MTC were fully
protected and her defenses were properly ventilated when he filed the
appeal from the MTC to the RTC. But respondent thereafter resorted to
devious and underhanded means to delay the execution of the judgment
rendered by the MTC adverse to his client. The said decision became
executory even pending its appeal with the RTC because of the failure of Co
to file a supersedeas bond and to pay the monthly rentals as they fell due.
Furthermore, his petition for annulment of the decisions of the MTC and RTC
which he filed with the CA (CA-G.R. No. 11690) was defective and dilatory.

According to the CA, there was no allegation therein that the courts had no
jurisdiction, that his client was denied due process, or "that the judgments in
the former cases were secured through fraud."
As ruled in Regidor v. Court of Appeals, 219 SCRA 530 (1993):
A judgment can be annulled only on two grounds: (a) that
the judgment is void for want of jurisdiction or for lack of
due process of law, or (b) that it has been obtained by
fraud. . . . (at p. 534).
Moreover, when the CA ordered that the records of the case be remanded,
respondent knew very well that the decision of the MTC was already ripe for
execution.
This Court, in People of Paombong, Bulacan v. Court of Appeals, 218 SCRA
423 (1993), ruled:
. . . [w]hen the judgment of a superior court is remanded to
the trial court for execution, the function of the trial court is
ministerial only; the trial court is merely obliged with
becoming modesty to enforce that judgment and has no
jurisdiction either to modify in any way or to reverse the
same. . . . (at p. 430).
(See also Valenzona v. Court of Appeals, 226 SCRA 306 [1993] and Garbo
v. Court of Appeals, 226 SCRA 250 [1993]).
Respondent filed a total of six appeals, complaints or petitions to frustrate
the execution of the MTC judgment in Civil Case No. 844, to wit:
(1) Civil Case No. 344 Appeal from the decision
rendered in Civil Case No. 844 of the Municipal Trial
Court, Bangued, Abra, with the Regional Trial Court, Abra;
(2) CA-G.R. CV No. 11404 Appeal from the decision of
the Regional Trial Court, Abra;
(3) CA-G.R. SP No. 11690 An Action For the Annulment
of Decisions And/Or Reformation or Novation of Decisions
filed with the Court of Appeals;
(4) G.R. No. 86084 Petition For Review
On Certiorari filed with the Supreme Court;
(5) CA-G.R. SP No. 17040 Appeal And/Or Review
By Certiorari, Etc. filed also with the Court of Appeals; and,
(6) SP Civil Action No. 624 Petition For Certiorari,
Prohibition, Mandamus with Preliminary Issuance of
Prohibitory Order filed with the Regional Trial Court,
Branch 1, Bangued, Abra.
Judging from the number of actions filed by respondent to forestall the
execution of the same judgment, respondent is also guilty of forum
shopping.
In Villanueva v. Adre 172 SCRA 876 (1989), the Court explained that forum
shopping exists when, by reason of an adverse decision in one forum,
defendant ventures to another for a more favorable resolution of his case. In

the case of Gabriel v. Court of Appeals, 72 SCRA 272 (1976), this Court
explained that:
Such filing of multiple petitions constitutes abuse of the
Court's processes and improper conduct that tends to
impede, obstruct and degrade the administration of justice
and will be punished as contempt of court. Needless to
add, the lawyer who filed such multiple or repetitious
petitions (which obviously delays the execution of a final
and executory judgment) subjects himself to disciplinary
action for incompetence (for not knowing any better) or for
willful violation of his duties as an attorney to act with all
good fidelity to the courts and to maintain only such
actions as appear to him to be just and are consistent with
truth and honor (at p. 275).
By having wilfully and knowingly abused his rights of recourse in his efforts
to get a favorable judgment, which efforts were all rebuffed, respondent
violated the duty of a member of the Bar to institute actions only which are
just and put up such defenses as he perceives to be truly contestable under
the laws (Garcia v. Francisco, 220 SCRA 512 [1993]). As correctly noted by
the Committee on Bar Discipline "in filing a number of pleadings, actions and
petitioner, respondent 'has made a mockery of the judicial processes' and
disregarded canons of professional ethics in intentionally frustrating the
rights of a litigant in whose favor a judgment in the case was rendered, thus,
'abused procedural rules to defeat ends of substantial justice'" (Report and
Recommendation, IBP Committee on Bar Discipline, p. 2).
WHEREFORE, respondent is SUSPENDED for one year.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 100113 September 3, 1991
RENATO CAYETANO, petitioner,
vs.
CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION ON
APPOINTMENT, and HON. GUILLERMO CARAGUE, in his capacity as
Secretary of Budget and Management, respondents.
Renato L. Cayetano for and in his own behalf.
Sabina E. Acut, Jr. and Mylene Garcia-Albano co-counsel for petitioner.

PARAS, J.:p
We are faced here with a controversy of far-reaching proportions. While
ostensibly only legal issues are involved, the Court's decision in this case
would indubitably have a profound effect on the political aspect of our
national existence.
The 1987 Constitution provides in Section 1 (1), Article IX-C:

There shall be a Commission on Elections composed of a

Chairman and six Commissioners who shall be naturalborn citizens of the Philippines and, at the time of their
appointment, at least thirty-five years of age, holders of a
college degree, and must not have been candidates for
any elective position in the immediately preceding
-elections. However, a majority thereof, including the
Chairman, shall be members of the Philippine Bar who
have been engaged in the practice of law for at least ten
years. (Emphasis supplied)
The aforequoted provision is patterned after Section l(l), Article XII-C of the
1973 Constitution which similarly provides:
There shall be an independent Commission on Elections composed of a
Chairman and eight Commissioners who shall be natural-born citizens of the
Philippines and, at the time of their appointment, at least thirty-five years of
age and holders of a college degree. However, a majority thereof, including
the Chairman, shall be members of the Philippine Bar who have been
engaged in the practice of law for at least ten years.' (Emphasis supplied)
Regrettably, however, there seems to be no jurisprudence as to what
constitutes practice of law as a legal qualification to an appointive office.
Black defines "practice of law" as:
The rendition of services requiring the knowledge and the
application of legal principles and technique to serve the
interest of another with his consent. It is not limited to
appearing in court, or advising and assisting in the
conduct of litigation, but embraces the preparation of
pleadings, and other papers incident to actions and
special proceedings, conveyancing, the preparation of
legal instruments of all kinds, and the giving of all legal
advice to clients. It embraces all advice to clients and all
actions taken for them in matters connected with the law.
An attorney engages in the practice of law by maintaining
an office where he is held out to be-an attorney, using a
letterhead describing himself as an attorney, counseling
clients in legal matters, negotiating with opposing counsel

about pending litigation, and fixing and collecting fees for

services rendered by his associate. (Black's Law
Dictionary, 3rd ed.)
The practice of law is not limited to the conduct of cases in court. (Land Title
Abstract and Trust Co. v. Dworken,129 Ohio St. 23, 193 N.E. 650) A person
is also considered to be in the practice of law when he:
... for valuable consideration engages in the business of
advising person, firms, associations or corporations as to
their rights under the law, or appears in a representative
capacity as an advocate in proceedings pending or
prospective, before any court, commissioner, referee,
board, body, committee, or commission constituted by law
or authorized to settle controversies and there, in such
representative capacity performs any act or acts for the
purpose of obtaining or defending the rights of their clients
under the law. Otherwise stated, one who, in a
representative capacity, engages in the business of
advising clients as to their rights under the law, or while so
engaged performs any act or acts either in court or outside
of court for that purpose, is engaged in the practice of law.
(State ex. rel. Mckittrick v..C.S. Dudley and Co., 102 S.W.
2d 895, 340 Mo. 852)
This Court in the case of Philippine Lawyers Association v.Agrava, (105 Phil.
173,176-177) stated:
The practice of law is not limited to the conduct of cases
or litigation in court; it embraces the preparation of
pleadings and other papers incident to actions and special
proceedings, the management of such actions and
proceedings on behalf of clients before judges and courts,
and in addition, conveying. In general, all advice to clients,
and all action taken for them in mattersconnected with the
law incorporation services, assessment and condemnation
services contemplating an appearance before a judicial
body, the foreclosure of a mortgage, enforcement of a
creditor's claim in bankruptcy and insolvency proceedings,
and conducting proceedings in attachment, and in matters
of estate and guardianship have been held to constitute

law practice, as do the preparation and drafting of legal

instruments, where the work done involves the
determination by the trained legal mind of the legal effect
of facts and conditions. (5 Am. Jr. p. 262, 263). (Emphasis
supplied)
Practice of law under modem conditions consists in no
small part of work performed outside of any court and
having no immediate relation to proceedings in court. It
embraces conveyancing, the giving of legal advice on a
large variety of subjects, and the preparation and
execution of legal instruments covering an extensive field
of business and trust relations and other affairs. Although
these transactions may have no direct connection with
court proceedings, they are always subject to become
involved in litigation. They require in many aspects a high
degree of legal skill, a wide experience with men and
affairs, and great capacity for adaptation to difficult and
complex situations. These customary functions of an
attorney or counselor at law bear an intimate relation to
the administration of justice by the courts. No valid
distinction, so far as concerns the question set forth in the
order, can be drawn between that part of the work of the
lawyer which involves appearance in court and that part
which involves advice and drafting of instruments in his
office. It is of importance to the welfare of the public that
these manifold customary functions be performed by
persons possessed of adequate learning and skill, of
sound moral character, and acting at all times under the
heavy trust obligations to clients which rests upon all
attorneys. (Moran, Comments on the Rules of Court, Vol.
3 [1953 ed.] , p. 665-666, citing In re Opinion of the
Justices [Mass.], 194 N.E. 313, quoted in Rhode Is. Bar
Assoc. v. Automobile Service Assoc. [R.I.] 179 A.
139,144). (Emphasis ours)
The University of the Philippines Law Center in conducting orientation
briefing for new lawyers (1974-1975) listed the dimensions of the practice of
law in even broader terms as advocacy, counselling and public service.

One may be a practicing attorney in following any line of

employment in the profession. If what he does exacts
knowledge of the law and is of a kind usual for attorneys
engaging in the active practice of their profession, and he
follows some one or more lines of employment such as
this he is a practicing attorney at law within the meaning of
the statute. (Barr v. Cardell, 155 NW 312)
Practice of law means any activity, in or out of court, which requires the
application of law, legal procedure, knowledge, training and experience. "To
engage in the practice of law is to perform those acts which are
characteristics of the profession. Generally, to practice law is to give notice
or render any kind of service, which device or service requires the use in any
degree of legal knowledge or skill." (111 ALR 23)
The following records of the 1986 Constitutional Commission show that it
has adopted a liberal interpretation of the term "practice of law."
MR. FOZ. Before we suspend the
session, may I make a manifestation
which I forgot to do during our review of
the provisions on the Commission on
Audit. May I be allowed to make a very
brief statement?
THE PRESIDING OFFICER (Mr. Jamir).
The Commissioner will please proceed.
MR. FOZ. This has to do with the
qualifications of the members of the
Commission on Audit. Among others,
the qualifications provided for by
Section I is that "They must be
Members of the Philippine Bar" I am
quoting from the provision "who have
been engaged in the practice of law for
at least ten years".

To avoid any misunderstanding which would result in

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

provisions on the Commission on Audit.

And, therefore, the answer is yes.
MR. OPLE. Yes. So that the
construction given to this is that this is
equivalent to the practice of law.
MR. FOZ. Yes, Mr. Presiding Officer.
MR. OPLE. Thank you.
... ( Emphasis supplied)

This has been discussed by the Committee on

Constitutional Commissions and Agencies and we deem it
important to take it up on the floor so that this
interpretation may be made available whenever this
provision on the qualifications as regards members of the
Philippine Bar engaging in the practice of law for at least
ten years is taken up.
MR. OPLE. Will Commissioner Foz yield
to just one question.
MR. FOZ. Yes, Mr. Presiding Officer.
MR. OPLE. Is he, in effect, saying that
service in the COA by a lawyer is
equivalent to the requirement of a law
practice that is set forth in the Article on
the Commission on Audit?
MR. FOZ. We must consider the fact
that the work of COA, although it is
auditing, will necessarily involve legal
work; it will involve legal work. And,
therefore, lawyers who are employed in
COA now would have the necessary
qualifications in accordance with the
Provision on qualifications under our

Section 1(1), Article IX-D of the 1987 Constitution, provides, among others,
that the Chairman and two Commissioners of the Commission on Audit
(COA) should either be certified public accountants with not less than ten
years of auditing practice, or members of the Philippine Bar who have been
engaged in the practice of law for at least ten years. (emphasis supplied)
Corollary to this is the term "private practitioner" and which is in many ways
synonymous with the word "lawyer." Today, although many lawyers do not
engage in private practice, it is still a fact that the majority of lawyers are
private practitioners. (Gary Munneke, Opportunities in Law Careers [VGM
Career Horizons: Illinois], [1986], p. 15).
At this point, it might be helpful to define private practice. The term, as
commonly understood, means "an individual or organization engaged in the
business of delivering legal services." (Ibid.). Lawyers who practice alone
are often called "sole practitioners." Groups of lawyers are called "firms."
The firm is usually a partnership and members of the firm are the partners.
Some firms may be organized as professional corporations and the
members called shareholders. In either case, the members of the firm are
the experienced attorneys. In most firms, there are younger or more
inexperienced salaried attorneyscalled "associates." (Ibid.).
The test that defines law practice by looking to traditional areas of law
practice is essentially tautologous, unhelpful defining the practice of law as
that which lawyers do. (Charles W. Wolfram, Modern Legal Ethics [West
Publishing Co.: Minnesota, 1986], p. 593). The practice of law is defined as
the performance of any acts . . . in or out of court, commonly understood to

be the practice of law. (State Bar Ass'n v. Connecticut Bank & Trust Co., 145
Conn. 222, 140 A.2d 863, 870 [1958] [quoting Grievance Comm. v. Payne,
128 Conn. 325, 22 A.2d 623, 626 [1941]). Because lawyers perform almost
every function known in the commercial and governmental realm, such a
definition would obviously be too global to be workable.(Wolfram, op. cit.).
The appearance of a lawyer in litigation in behalf of a client is at once the
most publicly familiar role for lawyers as well as an uncommon role for the
average lawyer. Most lawyers spend little time in courtrooms, and a large
percentage spend their entire practice without litigating a case. (Ibid., p.
593). Nonetheless, many lawyers do continue to litigate and the litigating
lawyer's role colors much of both the public image and the self perception of
the legal profession. (Ibid.).
In this regard thus, the dominance of litigation in the public mind reflects
history, not reality. (Ibid.). Why is this so? Recall that the late Alexander
SyCip, a corporate lawyer, once articulated on the importance of a lawyer as
a business counselor in this wise: "Even today, there are still uninformed
laymen whose concept of an attorney is one who principally tries cases
before the courts. The members of the bench and bar and the informed
laymen such as businessmen, know that in most developed societies today,
substantially more legal work is transacted in law offices than in the
courtrooms. General practitioners of law who do both litigation and nonlitigation work also know that in most cases they find themselves spending
more time doing what [is] loosely desccribe[d] as business counseling than
in trying cases. The business lawyer has been described as the planner, the
diagnostician and the trial lawyer, the surgeon. I[t] need not [be] stress[ed]
that in law, as in medicine, surgery should be avoided where internal
medicine can be effective." (Business Star, "Corporate Finance Law," Jan.
11, 1989, p. 4).
In the course of a working day the average general practitioner wig engage
in a number of legal tasks, each involving different legal doctrines, legal
skills, legal processes, legal institutions, clients, and other interested parties.
Even the increasing numbers of lawyers in specialized practice wig usually
perform at least some legal services outside their specialty. And even within
a narrow specialty such as tax practice, a lawyer will shift from one legal task
or role such as advice-giving to an importantly different one such as
representing a client before an administrative agency. (Wolfram, supra, p.
687).

By no means will most of this work involve litigation, unless the lawyer is one
of the relatively rare types a litigator who specializes in this work to the
exclusion of much else. Instead, the work will require the lawyer to have
mastered the full range of traditional lawyer skills of client counselling,
advice-giving, document drafting, and negotiation. And increasingly lawyers
find that the new skills of evaluation and mediation are both effective for
many clients and a source of employment. (Ibid.).
Most lawyers will engage in non-litigation legal work or in litigation work that
is constrained in very important ways, at least theoretically, so as to remove
from it some of the salient features of adversarial litigation. Of these special
roles, the most prominent is that of prosecutor. In some lawyers' work the
constraints are imposed both by the nature of the client and by the way in
which the lawyer is organized into a social unit to perform that work. The
most common of these roles are those of corporate practice and government
legal service. (Ibid.).
In several issues of the Business Star, a business daily, herein below quoted
are emerging trends in corporate law practice, a departure from the
traditional concept of practice of law.
We are experiencing today what truly may be called a
revolutionary transformation in corporate law practice.
Lawyers and other professional groups, in particular those
members participating in various legal-policy decisional
contexts, are finding that understanding the major
emerging trends in corporation law is indispensable to
intelligent decision-making.
Constructive adjustment to major corporate problems of
today requires an accurate understanding of the nature
and implications of the corporate law research function
accompanied by an accelerating rate of information
accumulation. The recognition of the need for such
improved corporate legal policy formulation, particularly
"model-making" and "contingency planning," has
impressed upon us the inadequacy of traditional
procedures in many decisional contexts.

In a complex legal problem the mass of information to be

processed, the sorting and weighing of significant
conditional factors, the appraisal of major trends, the
necessity of estimating the consequences of given
courses of action, and the need for fast decision and
response in situations of acute danger have prompted the
use of sophisticated concepts of information flow theory,
operational analysis, automatic data processing, and
electronic computing equipment. Understandably, an
improved decisional structure must stress the predictive
component of the policy-making process, wherein a
"model", of the decisional context or a segment thereof is
developed to test projected alternative courses of action in
terms of futuristic effects flowing therefrom.
Although members of the legal profession are regularly
engaged in predicting and projecting the trends of the law,
the subject of corporate finance law has received relatively
little organized and formalized attention in the philosophy
of advancing corporate legal education. Nonetheless, a
cross-disciplinary approach to legal research has become
a vital necessity.
Certainly, the general orientation for productive
contributions by those trained primarily in the law can be
improved through an early introduction to multi-variable
decisional context and the various approaches for
handling such problems. Lawyers, particularly with either a
master's or doctorate degree in business administration or
management, functioning at the legal policy level of
decision-making now have some appreciation for the
concepts and analytical techniques of other professions
which are currently engaged in similar types of complex
decision-making.
Truth to tell, many situations involving corporate finance
problems would require the services of an astute attorney
because of the complex legal implications that arise from
each and every necessary step in securing and
maintaining the business issue raised. (Business Star,
"Corporate Finance Law," Jan. 11, 1989, p. 4).

In our litigation-prone country, a corporate lawyer is

assiduously referred to as the "abogado de campanilla."
He is the "big-time" lawyer, earning big money and with a
clientele composed of the tycoons and magnates of
business and industry.
Despite the growing number of corporate lawyers, many
people could not explain what it is that a corporate lawyer
does. For one, the number of attorneys employed by a
single corporation will vary with the size and type of the
corporation. Many smaller and some large corporations
farm out all their legal problems to private law firms. Many
others have in-house counsel only for certain matters.
Other corporation have a staff large enough to handle
most legal problems in-house.
A corporate lawyer, for all intents and purposes, is a
lawyer who handles the legal affairs of a corporation. His
areas of concern or jurisdiction may include, inter alia:
corporate legal research, tax laws research, acting out as
corporate secretary (in board meetings), appearances in
both courts and other adjudicatory agencies (including the
Securities and Exchange Commission), and in other
capacities which require an ability to deal with the law.
At any rate, a corporate lawyer may assume
responsibilities other than the legal affairs of the business
of the corporation he is representing. These include such
matters as determining policy and becoming involved in
management. ( Emphasis supplied.)
In a big company, for example, one may have a feeling of
being isolated from the action, or not understanding how
one's work actually fits into the work of the orgarnization.
This can be frustrating to someone who needs to see the
results of his work first hand. In short, a corporate lawyer
is sometimes offered this fortune to be more closely
involved in the running of the business.

Moreover, a corporate lawyer's services may sometimes

be engaged by a multinational corporation (MNC). Some
large MNCs provide one of the few opportunities available
to corporate lawyers to enter the international law field.
After all, international law is practiced in a relatively small
number of companies and law firms. Because working in a
foreign country is perceived by many as glamorous, tills is
an area coveted by corporate lawyers. In most cases,
however, the overseas jobs go to experienced attorneys
while the younger attorneys do their "international
practice" in law libraries. (Business Star, "Corporate Law
Practice," May 25,1990, p. 4).
This brings us to the inevitable, i.e., the role of the lawyer
in the realm of finance. To borrow the lines of Harvardeducated lawyer Bruce Wassertein, to wit: "A bad lawyer is
one who fails to spot problems, a good lawyer is one who
perceives the difficulties, and the excellent lawyer is one
who surmounts them." (Business Star, "Corporate Finance
Law," Jan. 11, 1989, p. 4).
Today, the study of corporate law practice direly needs a
"shot in the arm," so to speak. No longer are we talking of
the traditional law teaching method of confining the subject
study to the Corporation Code and the Securities Code but
an incursion as well into the intertwining modern
management issues.

Some current advances in behavior and policy sciences

affect the counsel's role. For that matter, the corporate
lawyer reviews the globalization process, including the
resulting strategic repositioning that the firms he provides
counsel for are required to make, and the need to think
about a corporation's; strategy at multiple levels. The
salience of the nation-state is being reduced as firms deal
both with global multinational entities and simultaneously
with sub-national governmental units. Firms increasingly
collaborate not only with public entities but with each other
often with those who are competitors in other arenas.
Also, the nature of the lawyer's participation in decisionmaking within the corporation is rapidly changing. The
modem corporate lawyer has gained a new role as a
stakeholder in some cases participating in the
organization and operations of governance through
participation on boards and other decision-making roles.
Often these new patterns develop alongside existing legal
institutions and laws are perceived as barriers. These
trends are complicated as corporations organize for global
operations. ( Emphasis supplied)

Such corporate legal management issues deal primarily

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

The practising lawyer of today is familiar as well with

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

These three subject areas may be thought of as

intersecting circles, with a shared area linking them.
Otherwise
known
as
"intersecting
managerial
jurisprudence," it forms a unifying theme for the corporate
counsel's total learning.

Following the concept of boundary spanning, the office of

the Corporate Counsel comprises a distinct group within
the managerial structure of all kinds of organizations.
Effectiveness of both long-term and temporary groups
within organizations has been found to be related to

indentifiable factors in the group-context interaction such

as the groups actively revising their knowledge of the
environment coordinating work with outsiders, promoting
team achievements within the organization. In general,
such external activities are better predictors of team
performance than internal group processes.
In a crisis situation, the legal managerial capabilities of the
corporate lawyer vis-a-vis the managerial mettle of
corporations are challenged. Current research is seeking
ways both to anticipate effective managerial procedures
and to understand relationships of financial liability and
insurance considerations. (Emphasis supplied)
Regarding the skills to apply by the corporate counsel,
three factors are apropos:
First System Dynamics. The field of systems dynamics
has been found an effective tool for new managerial
thinking regarding both planning and pressing immediate
problems. An understanding of the role of feedback loops,
inventory levels, and rates of flow, enable users to
simulate all sorts of systematic problems physical,
economic, managerial, social, and psychological. New
programming techniques now make the system dynamics
principles more accessible to managers including
corporate counsels. (Emphasis supplied)
Second Decision Analysis. This enables users to make
better decisions involving complexity and uncertainty. In
the context of a law department, it can be used to
appraise the settlement value of litigation, aid in
negotiation settlement, and minimize the cost and risk
involved in managing a portfolio of cases. (Emphasis
supplied)
Third Modeling for Negotiation Management. Computerbased models can be used directly by parties and
mediators in all lands of negotiations. All integrated set of
such tools provide coherent and effective negotiation

support, including hands-on on instruction in these

techniques. A simulation case of an international joint
venture may be used to illustrate the point.
[Be this as it may,] the organization and management of
the legal function, concern three pointed areas of
consideration, thus:
Preventive Lawyering. Planning by lawyers requires
special skills that comprise a major part of the general
counsel's responsibilities. They differ from those of
remedial law. Preventive lawyering is concerned with
minimizing the risks of legal trouble and maximizing legal
rights for such legal entities at that time when transactional
or similar facts are being considered and made.
Managerial Jurisprudence. This is the framework within
which are undertaken those activities of the firm to which
legal consequences attach. It needs to be directly
supportive of this nation's evolving economic and
organizational fabric as firms change to stay competitive in
a global, interdependent environment. The practice and
theory of "law" is not adequate today to facilitate the
relationships needed in trying to make a global economy
work.
Organization and Functioning of the Corporate Counsel's
Office. The general counsel has emerged in the last
decade as one of the most vibrant subsets of the legal
profession. The corporate counsel hear responsibility for
key aspects of the firm's strategic issues, including
structuring its global operations, managing improved
relationships with an increasingly diversified body of
employees, managing expanded liability exposure,
creating new and varied interactions with public decisionmakers, coping internally with more complex make or by
decisions.
This whole exercise drives home the thesis that knowing
corporate law is not enough to make one a good general

corporate counsel nor to give him a full sense of how the

legal system shapes corporate activities. And even if the
corporate lawyer's aim is not the understand all of the
law's effects on corporate activities, he must, at the very
least, also gain a working knowledge of the management
issues if only to be able to grasp not only the basic legal
"constitution' or makeup of the modem corporation.
"Business Star", "The Corporate Counsel," April 10, 1991,
p. 4).
The challenge for lawyers (both of the bar and the bench)
is to have more than a passing knowledge of financial law
affecting each aspect of their work. Yet, many would admit
to ignorance of vast tracts of the financial law territory.
What transpires next is a dilemma of professional security:
Will the lawyer admit ignorance and risk opprobrium?; or
will he feign understanding and risk exposure? (Business
Star, "Corporate Finance law," Jan. 11, 1989, p. 4).
Respondent Christian Monsod was nominated by President Corazon C.
Aquino to the position of Chairman of the COMELEC in a letter received by
the Secretariat of the Commission on Appointments on April 25, 1991.
Petitioner opposed the nomination because allegedly Monsod does not
possess the required qualification of having been engaged in the practice of
law for at least ten years.
On June 5, 1991, the Commission on Appointments confirmed the
nomination of Monsod as Chairman of the COMELEC. On June 18, 1991, he
took his oath of office. On the same day, he assumed office as Chairman of
the COMELEC.
Challenging the validity of the confirmation by the Commission on
Appointments of Monsod's nomination, petitioner as a citizen and taxpayer,
filed the instant petition for certiorari and Prohibition praying that said
confirmation and the consequent appointment of Monsod as Chairman of the
Commission on Elections be declared null and void.
Atty. Christian Monsod is a member of the Philippine Bar, having passed the
bar examinations of 1960 with a grade of 86-55%. He has been a dues
paying member of the Integrated Bar of the Philippines since its inception in

1972-73. He has also been paying his professional license fees as lawyer for
more than ten years. (p. 124, Rollo)
After graduating from the College of Law (U.P.) and having hurdled the
bar, Atty. Monsod worked in the law office of his father. During his stint in the
World Bank Group (1963-1970), Monsod worked as an operations officer for
about two years in Costa Rica and Panama, which involved getting
acquainted with the laws of member-countries negotiating loans and
coordinating legal, economic, and project work of the Bank. Upon returning
to the Philippines in 1970, he worked with the Meralco Group, served as
chief executive officer of an investment bank and subsequently of a
business conglomerate, and since 1986, has rendered services to various
companies as a legal and economic consultant or chief executive officer. As
former Secretary-General (1986) and National Chairman (1987) of
NAMFREL. Monsod's work involved being knowledgeable in election law.
He appeared for NAMFREL in its accreditation hearings before the
Comelec. In the field of advocacy, Monsod, in his personal capacity and as
former Co-Chairman of the Bishops Businessmen's Conference for Human
Development, has worked with the under privileged sectors, such as the
farmer and urban poor groups, in initiating, lobbying for and engaging in
affirmative action for the agrarian reform law and lately the urban land
reform bill. Monsod also made use of his legal knowledge as a member of
the Davide Commission, a quast judicial body, which conducted numerous
hearings (1990) and as a member of the Constitutional Commission (19861987), and Chairman of its Committee on Accountability of Public Officers,
for which he was cited by the President of the Commission, Justice Cecilia
Muoz-Palma for "innumerable amendments to reconcile government
functions with individual freedoms and public accountability and the party-list
system for the House of Representative. (pp. 128-129 Rollo) ( Emphasis
supplied)
Just a word about the work of a negotiating team of which Atty. Monsod used
to be a member.
In a loan agreement, for instance, a negotiating panel acts
as a team, and which is adequately constituted to meet
the various contingencies that arise during a negotiation.
Besides top officials of the Borrower concerned, there are
the legal officer (such as the legal counsel), the finance
manager, and an operations officer (such as an official
involved in negotiating the contracts) who comprise the

members of the team. (Guillermo V. Soliven, "Loan

Negotiating Strategies for Developing Country Borrowers,"
Staff Paper No. 2, Central Bank of the Philippines, Manila,
1982, p. 11). (Emphasis supplied)
After a fashion, the loan agreement is like a country's
Constitution; it lays down the law as far as the loan
transaction is concerned. Thus, the meat of any Loan
Agreement can be compartmentalized into five (5)
fundamental parts: (1) business terms; (2) borrower's
representation; (3) conditions of closing; (4) covenants;
and (5) events of default. (Ibid., p. 13).
In the same vein, lawyers play an important role in any
debt restructuring program. For aside from performing the
tasks of legislative drafting and legal advising, they score
national development policies as key factors in
maintaining their countries' sovereignty. (Condensed from
the work paper, entitled "Wanted: Development Lawyers
for Developing Nations," submitted by L. Michael Hager,
regional legal adviser of the United States Agency for
International Development, during the Session on Law for
the Development of Nations at the Abidjan World
Conference in Ivory Coast, sponsored by the World Peace
Through Law Center on August 26-31, 1973). ( Emphasis
supplied)
Loan concessions and compromises, perhaps even more
so than purely renegotiation policies, demand expertise in
the law of contracts, in legislation and agreement drafting
and in renegotiation. Necessarily, a sovereign lawyer may
work with an international business specialist or an
economist in the formulation of a model loan agreement.
Debt restructuring contract agreements contain such a
mixture of technical language that they should be carefully
drafted and signed only with the advise of competent
counsel in conjunction with the guidance of adequate
technical support personnel. (See International Law
Aspects of the Philippine External Debts, an unpublished
dissertation, U.S.T. Graduate School of Law, 1987, p.
321). ( Emphasis supplied)

A critical aspect of sovereign debt restructuring/contract

construction is the set of terms and conditions which
determines the contractual remedies for a failure to
perform one or more elements of the contract. A good
agreement must not only define the responsibilities of both
parties, but must also state the recourse open to either
party when the other fails to discharge an obligation. For a
compleat debt restructuring represents a devotion to that
principle which in the ultimate analysis issine qua non for
foreign loan agreements-an adherence to the rule of law in
domestic and international affairs of whose kind U.S.
Supreme Court Justice Oliver Wendell Holmes, Jr. once
said: "They carry no banners, they beat no drums; but
where they are, men learn that bustle and bush are not the
equal of quiet genius and serene mastery." (See Ricardo
J. Romulo, "The Role of Lawyers in Foreign Investments,"
Integrated Bar of the Philippine Journal, Vol. 15, Nos. 3
and 4, Third and Fourth Quarters, 1977, p. 265).
Interpreted in the light of the various definitions of the term Practice of law".
particularly the modern concept of law practice, and taking into
consideration the liberal construction intended by the framers of the
Constitution, Atty. Monsod's past work experiences as a lawyer-economist, a
lawyer-manager, a lawyer-entrepreneur of industry, a lawyer-negotiator of
contracts, and a lawyer-legislator of both the rich and the poor verily more
than satisfy the constitutional requirement that he has been engaged in
the practice of law for at least ten years.
Besides in the leading case of Luego v. Civil Service Commission, 143
SCRA 327, the Court said:
Appointment is an essentially discretionary power and
must be performed by the officer in which it is vested
according to his best lights, the only condition being that
the appointee should possess the qualifications required
by law. If he does, then the appointment cannot be faulted
on the ground that there are others better qualified who
should have been preferred. This is a political question
involving considerations of wisdom which only the
appointing authority can decide. (emphasis supplied)

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

any Member be appointed or designated in a temporary or

acting capacity.

It is well-settled that when the appointee is qualified, as in

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

Anent Justice Teodoro Padilla's separate opinion, suffice it

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

The appointing process in a regular appointment as in the case at bar,

consists of four (4) stages: (1) nomination; (2) confirmation by the
Commission on Appointments; (3) issuance of a commission (in the
Philippines, upon submission by the Commission on Appointments of its
certificate of confirmation, the President issues the permanent appointment;
and (4) acceptance e.g., oath-taking, posting of bond, etc. . . . (Lacson v.
Romero, No. L-3081, October 14, 1949; Gonzales, Law on Public Officers,
p. 200)
The power of the Commission on Appointments to give its consent to the
nomination of Monsod as Chairman of the Commission on Elections is
mandated by Section 1(2) Sub-Article C, Article IX of the Constitution which
provides:
The Chairman and the Commisioners shall be appointed
by the President with the consent of the Commission on
Appointments for a term of seven years without
reappointment. Of those first appointed, three Members
shall hold office for seven years, two Members for five
years, and the last Members for three years, without
reappointment. Appointment to any vacancy shall be only
for the unexpired term of the predecessor. In no case shall

Upon the other hand, the separate opinion of Justice Isagani Cruz states
that in my written opinion, I made use of a definition of law practice which
really means nothing because the definition says that law practice " . . . is
what people ordinarily mean by the practice of law." True I cited the definition
but only by way of sarcasm as evident from my statement that the definition
of law practice by "traditional areas of law practice is essentially tautologous"
or defining a phrase by means of the phrase itself that is being defined.
Justice Cruz goes on to say in substance that since the law covers almost all
situations, most individuals, in making use of the law, or in advising others
on what the law means, are actually practicing law. In that sense, perhaps,
but we should not lose sight of the fact that Mr. Monsod is a lawyer, a
member of the Philippine Bar, who has been practising law for over ten
years. This is different from the acts of persons practising law, without first
becoming lawyers.
Justice Cruz also says that the Supreme Court can even disqualify an
elected President of the Philippines, say, on the ground that he lacks one or
more qualifications. This matter, I greatly doubt. For one thing, how can an
action or petition be brought against the President? And even assuming that
he is indeed disqualified, how can the action be entertained since he is the
incumbent President?
We now proceed:

The Commission on the basis of evidence submitted doling the public

hearings on Monsod's confirmation, implicitly determined that he possessed
the necessary qualifications as required by law. The judgment rendered by
the Commission in the exercise of such an acknowledged power is beyond
judicial interference except only upon a clear showing of a grave abuse of
discretion amounting to lack or excess of jurisdiction. (Art. VIII, Sec. 1
Constitution). Thus, only where such grave abuse of discretion is clearly
shown shall the Court interfere with the Commission's judgment. In the
instant case, there is no occasion for the exercise of the Court's corrective
power, since no abuse, much less a grave abuse of discretion, that would
amount to lack or excess of jurisdiction and would warrant the issuance of
the writs prayed, for has been clearly shown.
Additionally, consider the following:
(1) If the Commission on Appointments rejects a nominee
by the President, may the Supreme Court reverse the
Commission, and thus in effect confirm the appointment?
Clearly, the answer is in the negative.
(2) In the same vein, may the Court reject the nominee,
whom the Commission has confirmed? The answer is
likewise clear.

No blood shall flow from his veins.

When Samson (his long hair cut by Delilah) was captured, the procurator
placed an iron rod burning white-hot two or three inches away from in front
of Samson's eyes. This blinded the man. Upon hearing of what had
happened to her beloved, Delilah was beside herself with anger, and fuming
with righteous fury, accused the procurator of reneging on his word. The
procurator calmly replied: "Did any blade touch his skin? Did any blood flow
from his veins?" The procurator was clearly relying on the letter, not the spirit
of the agreement.
In view of the foregoing, this petition is hereby DISMISSED.
SO ORDERED.
Fernan, C.J., Grio-Aquino and Medialdea, JJ., concur.
Feliciano, J., I certify that he voted to dismiss the petition. (Fernan, C.J.)
Sarmiento, J., is on leave.
Regalado, and Davide, Jr., J., took no part.

(3) If the United States Senate (which is the confirming

body in the U.S. Congress) decides to confirma
Presidential nominee, it would be incredible that the U.S.
Supreme Court would still reverse the U.S. Senate.
Finally, one significant legal maxim is:
We must interpret not by the letter that killeth, but by the
spirit that giveth life.
Take this hypothetical case of Samson and Delilah. Once, the procurator of
Judea asked Delilah (who was Samson's beloved) for help in capturing
Samson. Delilah agreed on condition that
No blade shall touch his skin;

Separate Opinions

NARVASA, J., concurring:

I concur with the decision of the majority written by Mr. Justice Paras, albeit
only in the result; it does not appear to me that there has been an adequate
showing that the challenged determination by the Commission on

Appointments-that the appointment of respondent Monsod as Chairman of

the Commission on Elections should, on the basis of his stated qualifications
and after due assessment thereof, be confirmed-was attended by error so
gross as to amount to grave abuse of discretion and consequently merits
nullification by this Court in accordance with the second paragraph of
Section 1, Article VIII of the Constitution. I therefore vote to DENY the
petition.

PADILLA, J., dissenting:

The records of this case will show that when the Court first deliberated on
the Petition at bar, I voted not only to require the respondents to comment on
the Petition, but I was the sole vote for the issuance of a temporary
restraining order to enjoin respondent Monsod from assuming the position of
COMELEC Chairman, while the Court deliberated on his constitutional
qualification for the office. My purpose in voting for a TRO was to prevent the
inconvenience and even embarrassment to all parties concerned were the
Court to finally decide for respondent Monsod's disqualification. Moreover, a
reading of the Petition then in relation to established jurisprudence already
showed prima facie that respondent Monsod did not possess the needed
qualification, that is, he had not engaged in the practice of law for at least ten
(10) years prior to his appointment as COMELEC Chairman.
After considering carefully respondent Monsod's comment, I am even more
convinced that the constitutional requirement of "practice of law for at least
ten (10) years" has not been met.
The procedural barriers interposed by respondents deserve scant
consideration because, ultimately, the core issue to be resolved in this
petition is the proper construal of the constitutional provision requiring a
majority of the membership of COMELEC, including the Chairman thereof to
"have been engaged in the practice of law for at least ten (10) years." (Art.
IX(C), Section 1(1), 1987 Constitution). Questions involving the construction
of constitutional provisions are best left to judicial resolution. As declared
in Angara v. Electoral Commission, (63 Phil. 139) "upon the judicial
department is thrown the solemn and inescapable obligation of interpreting
the Constitution and defining constitutional boundaries."

The Constitution has imposed clear and specific standards for a COMELEC
Chairman. Among these are that he must have been "engaged in the
practice of law for at least ten (10) years." It is the bounden duty of this Court
to ensure that such standard is met and complied with.
What constitutes practice of law? As commonly understood, "practice" refers
to the actual performance or application of knowledge as distinguished
from mere
possession
of
knowledge;
it
connotes
an active, habitual,repeated or customary action. 1 To "practice" law, or any
profession for that matter, means, to exercise or pursue an employment or
profession actively, habitually, repeatedly or customarily.
Therefore, a doctor of medicine who is employed and is habitually
performing the tasks of a nursing aide, cannot be said to be in the "practice
of medicine." A certified public accountant who works as a clerk, cannot be
said to practice his profession as an accountant. In the same way, a lawyer
who is employed as a business executive or a corporate manager, other
than as head or attorney of a Legal Department of a corporation or a
governmental agency, cannot be said to be in the practice of law.
As aptly held by this Court in the case of People vs. Villanueva: 2
Practice is more than an isolated appearance for it
consists in frequent or customary actions, a succession of
acts of the same kind. In other words, it is frequent
habitual exercise (State vs- Cotner, 127, p. 1, 87 Kan. 864,
42 LRA, M.S. 768). Practice of law to fall within the
prohibition of statute has been interpreted as customarily
or habitually holding one's self out to the public as a
lawyer and demanding payment for such services (State
vs. Bryan, 4 S.E. 522, 98 N.C. 644,647.) ... (emphasis
supplied).
It is worth mentioning that the respondent Commission on Appointments in a
Memorandum it prepared, enumerated several factors determinative of
whether a particular activity constitutes "practice of law." It states:
1. Habituality. The term "practice of law" implies
customarily or habitually holding one's self out to the
public as a lawyer (People vs. Villanueva, 14 SCRA 109

citing State v. Boyen, 4 S.E. 522, 98 N.C. 644) such as

when one sends a circular announcing the establishment
of a law office for the general practice of law (U.S. v. Ney
Bosque, 8 Phil. 146), or when one takes the oath of office
as a lawyer before a notary public, and files a
manifestation with the Supreme Court informing it of his
intention to practice law in all courts in the country (People
v. De Luna, 102 Phil. 968).

4. Attorney-client relationship. Engaging in the practice of

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

Practice is more than an isolated appearance for it

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

The above-enumerated factors would, I believe, be useful aids in

determining whether or not respondent Monsod meets the constitutional
qualification of practice of law for at least ten (10) years at the time of his
appointment as COMELEC Chairman.
The following relevant questions may be asked:

2. Compensation. Practice of law implies that one must

have presented himself to be in the active and continued
practice of the legal profession and that his professional
services are available to the public for compensation, as a
service of his livelihood or in consideration of his said
services. (People v. Villanueva, supra). Hence, charging
for services such as preparation of documents involving
the use of legal knowledge and skill is within the term
"practice of law" (Ernani Pao, Bar Reviewer in Legal and
Judicial Ethics, 1988 ed., p. 8 citing People v. People's
Stockyards State Bank, 176 N.B. 901) and, one who
renders an opinion as to the proper interpretation of a
statute, and receives pay for it, is to that extent, practicing
law (Martin, supra, p. 806 citing Mendelaun v. Gilbert and
Barket Mfg. Co., 290 N.Y.S. 462) If compensation is
expected, all advice to clients and all action taken for them
in matters connected with the law; are practicing law.
(Elwood Fitchette et al., v. Arthur C. Taylor, 94A-L.R. 356359)
3. Application of law legal principle practice or
procedure which calls for legal knowledge, training and
experience is within the term "practice of law".
(Martin supra)

1. Did respondent Monsod perform any of the tasks which are peculiar to the
practice of law?
2. Did respondent perform such tasks customarily or habitually?
3. Assuming that he performed any of such tasks habitually, did he do so
HABITUALLY FOR AT LEAST TEN (10) YEARS prior to his appointment as
COMELEC Chairman?
Given the employment or job history of respondent Monsod as appears from
the records, I am persuaded that if ever he did perform any of the tasks
which constitute the practice of law, he did not do so HABITUALLY for at
least ten (10) years prior to his appointment as COMELEC Chairman.
While it may be granted that he performed tasks and activities which could
be latitudinarianly considered activities peculiar to the practice of law, like the
drafting of legal documents and the rendering of legal opinion or advice,
such were isolated transactions or activities which do not qualify his past
endeavors as "practice of law." To become engaged in the practice of law,
there must be a continuity, or a succession of acts. As observed by the
Solicitor General in People vs. Villanueva: 4
Essentially, the word private practice of law implies that
one must have presented himself to be in

theactive and continued

practice
of
the
legal
profession and that his professional services are available
to the public for a compensation, as a source of his
livelihood or in consideration of his said services.
ACCORDINGLY, my vote is to GRANT the petition and to declare
respondent Monsod as not qualified for the position of COMELEC Chairman
for not having engaged in the practice of law for at least ten (10) years prior
to his appointment to such position.
CRUZ, J., dissenting:
I am sincerely impressed by the ponencia of my brother Paras but find I
must dissent just the same. There are certain points on which I must differ
with him while of course respecting hisviewpoint.
To begin with, I do not think we are inhibited from examining the
qualifications of the respondent simply because his nomination has been
confirmed by the Commission on Appointments. In my view, this is not a
political question that we are barred from resolving. Determination of the
appointee's credentials is made on the basis of the established facts, not the
discretion of that body. Even if it were, the exercise of that discretion would
still be subject to our review.
In Luego, which is cited in the ponencia, what was involved was the
discretion of the appointing authority tochoose between two claimants to the
same office who both possessed the required qualifications. It was that kind
of discretion that we said could not be reviewed.
If a person elected by no less than the sovereign people may be ousted by
this Court for lack of the required qualifications, I see no reason why we
cannot disqualified an appointee simply because he has passed the
Commission on Appointments.
Even the President of the Philippines may be declared ineligible by this
Court in an appropriate proceeding notwithstanding that he has been found
acceptable by no less than the enfranchised citizenry. The reason is that
what we would be examining is not the wisdom of his election but whether or
not he was qualified to be elected in the first place.

Coming now to the qualifications of the private respondent, I fear that

the ponencia may have been too sweeping in its definition of the phrase
"practice of law" as to render the qualification practically toothless. From the
numerous activities accepted as embraced in the term, I have the
uncomfortable feeling that one does not even have to be a lawyer to be
engaged in the practice of law as long as his activities involve the application
of some law, however peripherally. The stock broker and the insurance
adjuster and the realtor could come under the definition as they deal with or
give advice on matters that are likely "to become involved in litigation."
The lawyer is considered engaged in the practice of law even if his main
occupation is another business and he interprets and applies some law only
as an incident of such business. That covers every company organized
under the Corporation Code and regulated by the SEC under P.D. 902-A.
Considering the ramifications of the modern society, there is hardly any
activity that is not affected by some law or government regulation the
businessman must know about and observe. In fact, again going by the
definition, a lawyer does not even have to be part of a business concern to
be considered a practitioner. He can be so deemed when, on his own, he
rents a house or buys a car or consults a doctor as these acts involve his
knowledge and application of the laws regulating such transactions. If he
operates a public utility vehicle as his main source of livelihood, he would
still be deemed engaged in the practice of law because he must obey the
Public Service Act and the rules and regulations of the Energy Regulatory
Board.
The ponencia quotes an American decision defining the practice of law as
the "performance of any acts ... in or out of court, commonly understood to
be the practice of law," which tells us absolutely nothing. The decision goes
on to say that "because lawyers perform almost every function known in the
commercial and governmental realm, such a definition would obviously be
too global to be workable."
The effect of the definition given in the ponencia is to consider virtually every
lawyer to be engaged in the practice of law even if he does not earn his
living, or at least part of it, as a lawyer. It is enough that his activities are
incidentally (even if only remotely) connected with some law, ordinance, or
regulation. The possible exception is the lawyer whose income is derived
from teaching ballroom dancing or escorting wrinkled ladies with pubescent
pretensions.

The respondent's credentials are impressive, to be sure, but they do not

persuade me that he has been engaged in the practice of law for ten years
as required by the Constitution. It is conceded that he has been engaged in
business and finance, in which areas he has distinguished himself, but as an
executive and economist and not as a practicing lawyer. The plain fact is that
he has occupied the various positions listed in his resume by virtue of his
experience and prestige as a businessman and not as an attorney-at-law
whose principal attention is focused on the law. Even if it be argued that he
was acting as a lawyer when he lobbied in Congress for agrarian and urban
reform, served in the NAMFREL and the Constitutional Commission
(together with non-lawyers like farmers and priests) and was a member of
the Davide Commission, he has not proved that his activities in these
capacities extended over the prescribed 10-year period of actual practice of
the law. He is doubtless eminently qualified for many other positions worthy
of his abundant talents but not as Chairman of the Commission on Elections.
I have much admiration for respondent Monsod, no less than for Mr. Justice
Paras, but I must regretfully vote to grant the petition.
GUTIERREZ, JR., J., dissenting:
When this petition was filed, there was hope that engaging in the practice of
law as a qualification for public office would be settled one way or another in
fairly definitive terms. Unfortunately, this was not the result.

background, experience in international banking and finance, and instant

recognition by the public. His integrity and competence are not questioned
by the petitioner. What is before us is compliance with a specific requirement
written into the Constitution.
Inspite of my high regard for Mr. Monsod, I cannot shirk my constitutional
duty. He has never engaged in the practice of law for even one year. He is a
member of the bar but to say that he has practiced law is stretching the term
beyond rational limits.
A person may have passed the bar examinations. But if he has not
dedicated his life to the law, if he has not engaged in an activity where
membership in the bar is a requirement I fail to see how he can claim to
have been engaged in the practice of law.
Engaging in the practice of law is a qualification not only for COMELEC
chairman but also for appointment to the Supreme Court and all lower
courts. What kind of Judges or Justices will we have if there main occupation
is selling real estate, managing a business corporation, serving in factfinding committee, working in media, or operating a farm with no active
involvement in the law, whether in Government or private practice, except
that in one joyful moment in the distant past, they happened to pass the bar
examinations?

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

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

There are two key factors that make our task difficult. First is our reviewing
the work of a constitutional Commission on Appointments whose duty is
precisely to look into the qualifications of persons appointed to high office.
Even if the Commission errs, we have no power to set aside error. We can
look only into grave abuse of discretion or whimsically and arbitrariness.
Second is our belief that Mr. Monsod possesses superior qualifications in
terms of executive ability, proficiency in management, educational

I agree with the petitioner that based on the bio-data submitted by

respondent Monsod to the Commission on Appointments, the latter has not
been engaged in the practice of law for at least ten years. In fact, if appears
that Mr. Monsod has never practiced law except for an alleged one year
period after passing the bar examinations when he worked in his father's law
firm. Even then his law practice must have been extremely limited because
he was also working for M.A. and Ph. D. degrees in Economics at the

University of Pennsylvania during that period. How could he practice law in

the United States while not a member of the Bar there?

b. Dataprep, Philippines
c. Philippine SUNsystems Products, Inc.

The professional life of the respondent follows:

d. Semirara Coal Corporation
1.15.1. Respondent Monsod's activities since his passing
the Bar examinations in 1961 consist of the following:
1. 1961-1963: M.A. in Economics (Ph. D. candidate),
University of Pennsylvania
2. 1963-1970: World Bank Group Economist, Industry
Department; Operations, Latin American Department;
Division Chief, South Asia and Middle East, International
Finance Corporation
3. 1970-1973: Meralco Group Executive of various
companies, i.e., Meralco Securities Corporation, Philippine
Petroleum Corporation, Philippine Electric Corporation

e. CBL Timber Corporation

Member of the Board of the Following:
a. Engineering Construction Corporation of the Philippines
b. First Philippine Energy Corporation
c. First Philippine Holdings Corporation
d. First Philippine Industrial Corporation
e. Graphic Atelier

4. 1973-1976: Yujuico Group President, Fil-Capital

Development Corporation and affiliated companies

f. Manila Electric Company

5. 1976-1978: Finaciera Manila Chief Executive Officer

g. Philippine Commercial Capital, Inc.

6. 1978-1986: Guevent Group of Companies Chief

Executive Officer

h. Philippine Electric Corporation

i. Tarlac Reforestation and Environment Enterprises

7. 1986-1987: Philippine Constitutional Commission

Member
8. 1989-1991: The Fact-Finding Commission on the
December 1989 Coup Attempt Member
9. Presently: Chairman of the Board and Chief Executive
Officer of the following companies:
a. ACE Container Philippines, Inc.

j. Tolong Aquaculture Corporation

k. Visayan Aquaculture Corporation
l. Guimaras Aquaculture Corporation (Rollo, pp. 21-22)
There is nothing in the above bio-data which even remotely indicates that
respondent Monsod has given the lawenough attention or a certain degree
of commitment and participation as would support in all sincerity and candor

the claim of having engaged in its practice for at least ten years. Instead of
working as a lawyer, he has lawyers working for him. Instead of giving
receiving that legal advice of legal services, he was the oneadvice and those
services as an executive but not as a lawyer.
The deliberations before the Commission on Appointments show an effort to
equate "engaged in the practice of law" with the use of legal knowledge in
various fields of endeavor such as commerce, industry, civic work, blue
ribbon investigations, agrarian reform, etc. where such knowledge would be
helpful.
I regret that I cannot join in playing fast and loose with a term, which even an
ordinary layman accepts as having a familiar and customary well-defined
meaning. Every resident of this country who has reached the age of
discernment has to know, follow, or apply the law at various times in his life.
Legal knowledge is useful if not necessary for the business executive,
legislator, mayor, barangay captain, teacher, policeman, farmer, fisherman,
market vendor, and student to name only a few. And yet, can these people
honestly assert that as such, they are engaged in the practice of law?
The Constitution requires having been "engaged in the practice of law for at
least ten years." It is not satisfied with having been "a member of the
Philippine bar for at least ten years."
Some American courts have defined the practice of law, as follows:
The practice of law involves not only appearance in court
in connection with litigation but also services rendered out
of court, and it includes the giving of advice or the
rendering of any services requiring the use of legal skill or
knowledge, such as preparing a will, contract or other
instrument, the legal effect of which, under the facts and
conditions involved, must be carefully determined.People
ex rel. Chicago Bar Ass'n v. Tinkoff, 399 Ill. 282, 77 N.E.2d
693; People ex rel. Illinois State Bar Ass'n v. People's
Stock Yards State Bank, 344 Ill. 462,176 N.E. 901, and
cases cited.
It would be difficult, if not impossible to lay down a formula
or definition of what constitutes the practice of law.

"Practicing law" has been defined as "Practicing as an

attorney or counselor at law according to the laws and
customs of our courts, is the giving of advice or rendition
of any sort of service by any person, firm or corporation
when the giving of such advice or rendition of such service
requires the use of any degree of legal knowledge or skill."
Without adopting that definition, we referred to it as being
substantially correct in People ex rel. Illinois State Bar
Ass'n v. People's Stock Yards State Bank, 344 Ill. 462,176
N.E. 901. (People v. Schafer, 87 N.E. 2d 773, 776)
For one's actions to come within the purview of practice of law they should
not only be activities peculiar to the work of a lawyer, they should also be
performed, habitually, frequently or customarily, to wit:
xxx xxx xxx
Respondent's answers to questions propounded to him
were rather evasive. He was asked whether or not he ever
prepared contracts for the parties in real-estate
transactions where he was not the procuring agent. He
answered: "Very seldom." In answer to the question as to
how many times he had prepared contracts for the parties
during the twenty-one years of his business, he said: "I
have no Idea." When asked if it would be more than half a
dozen times his answer was I suppose. Asked if he did not
recall making the statement to several parties that he had
prepared contracts in a large number of instances, he
answered: "I don't recall exactly what was said." When
asked if he did not remember saying that he had made a
practice of preparing deeds, mortgages and contracts and
charging a fee to the parties therefor in instances where
he was not the broker in the deal, he answered: "Well, I
don't believe so, that is not a practice." Pressed further for
an answer as to his practice in preparing contracts and
deeds for parties where he was not the broker, he finally
answered: "I have done about everything that is on the
books as far as real estate is concerned."
xxx xxx xxx

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

xxx xxx xxx

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

xxx xxx xxx

... An attorney, in the most general sense, is a person
designated or employed by another to act in his stead; an
agent; more especially, one of a class of persons
authorized to appear and act for suitors or defendants in
legal proceedings. Strictly, these professional persons are
attorneys at law, and non-professional agents are properly
styled "attorney's in fact;" but the single word is much used
as meaning an attorney at law. A person may be an
attorney in facto for another, without being an attorney at
law. Abb. Law Dict. "Attorney." A public attorney, or
attorney at law, says Webster, is an officer of a court of
law, legally qualified to prosecute and defend actions in
such court on the retainerof clients. "The principal duties of
an attorney are (1) to be true to the court and to his client;
(2) to manage the business of his client with care, skill,
and integrity; (3) to keep his client informed as to the state
of his business; (4) to keep his secrets confided to him as
such. ... His rights are to be justly compensated for his
services." Bouv. Law Dict. tit. "Attorney." The transitive
verb "practice," as defined by Webster, means 'to do or
perform frequently, customarily, or habitually; to perform
by a succession of acts, as, to practice gaming, ... to carry
on in practice, or repeated action; to apply, as a theory, to
real life; to exercise, as a profession, trade, art. etc.; as, to
practice law or medicine,' etc...." (State v. Bryan, S.E. 522,
523; Emphasis supplied)
In this jurisdiction, we have ruled that the practice of law denotes frequency
or a succession of acts. Thus, we stated in the case of People v. Villanueva
(14 SCRA 109 [1965]):

It is to be noted that the Commission on Appointment itself

recognizes habituality as a required component of the meaning of practice of
law in a Memorandum prepared and issued by it, to wit:
l. Habituality. The term 'practice of law' implies
customarilyor habitually holding one's self out to the public
as a lawyer (People v. Villanueva, 14 SCRA 109 citing
State v. Bryan, 4 S.E. 522, 98 N.C. 644) such as when
one sends a circular announcing the establishment of a
law office for the general practice of law (U.S. v. Noy
Bosque, 8 Phil. 146), or when one takes the oath of office
as a lawyer before a notary public, and files a
manifestation with the Supreme Court informing it of his
intention to practice law in all courts in the country (People
v. De Luna, 102 Phil. 968).
Practice is more than an isolated appearance, for it
consists in frequent or customary action, a succession of
acts of the same kind. In other words, it is a habitual
exercise (People v. Villanueva, 14 SCRA 1 09 citing State
v. Cotner, 1 27, p. 1, 87 Kan, 864)." (Rollo, p. 115)
xxx xxx xxx
While the career as a businessman of respondent Monsod may have
profited from his legal knowledge, the use of such legal knowledge is
incidental and consists of isolated activities which do not fall under the
denomination of practice of law. Admission to the practice of law was not
required for membership in the Constitutional Commission or in the FactFinding Commission on the 1989 Coup Attempt. Any specific legal activities

which may have been assigned to Mr. Monsod while a member may be
likened to isolated transactions of foreign corporations in the Philippines
which do not categorize the foreign corporations as doing business in the
Philippines. As in the practice of law, doing business also should be active
and continuous. Isolated business transactions or occasional, incidental and
casual transactions are not within the context of doing business. This was
our ruling in the case of Antam Consolidated, Inc. v. Court of appeals, 143
SCRA 288 [1986]).
Respondent Monsod, corporate executive, civic leader, and member of the
Constitutional Commission may possess the background, competence,
integrity, and dedication, to qualify for such high offices as President, VicePresident, Senator, Congressman or Governor but the Constitution in
prescribing the specific qualification of having engaged in the practice of law
for at least ten (10) years for the position of COMELEC Chairman has
ordered that he may not be confirmed for that office. The Constitution
charges the public respondents no less than this Court to obey its mandate.
I, therefore, believe that the Commission on Appointments committed grave
abuse of discretion in confirming the nomination of respondent Monsod as
Chairman of the COMELEC.
I vote to GRANT the petition.
Bidin, J., dissent

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

Section 1, Article VIII of the Constitution. I therefore vote to DENY the

petition.
Melencio-Herrera, J., concur.
PADILLA, J., dissenting:
The records of this case will show that when the Court first deliberated on
the Petition at bar, I voted not only to require the respondents to comment on
the Petition, but I was the sole vote for the issuance of a temporary
restraining order to enjoin respondent Monsod from assuming the position of
COMELEC Chairman, while the Court deliberated on his constitutional
qualification for the office. My purpose in voting for a TRO was to prevent the
inconvenience and even embarrassment to all parties concerned were the
Court to finally decide for respondent Monsod's disqualification. Moreover, a
reading of the Petition then in relation to established jurisprudence already
showed prima facie that respondent Monsod did not possess the needed
qualification, that is, he had not engaged in the practice of law for at least ten
(10) years prior to his appointment as COMELEC Chairman.
After considering carefully respondent Monsod's comment, I am even more
convinced that the constitutional requirement of "practice of law for at least
ten (10) years" has not been met.
The procedural barriers interposed by respondents deserve scant
consideration because, ultimately, the core issue to be resolved in this
petition is the proper construal of the constitutional provision requiring a
majority of the membership of COMELEC, including the Chairman thereof to
"have been engaged in the practice of law for at least ten (10) years." (Art.
IX(C), Section 1(1), 1987 Constitution). Questions involving the construction
of constitutional provisions are best left to judicial resolution. As declared
in Angara v. Electoral Commission, (63 Phil. 139) "upon the judicial
department is thrown the solemn and inescapable obligation of interpreting
the Constitution and defining constitutional boundaries."
The Constitution has imposed clear and specific standards for a COMELEC
Chairman. Among these are that he must have been "engaged in the
practice of law for at least ten (10) years." It is the bounden duty of this Court
to ensure that such standard is met and complied with.

What constitutes practice of law? As commonly understood, "practice" refers

to the actual performance or application of knowledge as distinguished
from mere
possession
of
knowledge;
it
connotes
an active, habitual,repeated or customary action. 1 To "practice" law, or any
profession for that matter, means, to exercise or pursue an employment or
profession actively, habitually, repeatedly or customarily.
Therefore, a doctor of medicine who is employed and is habitually
performing the tasks of a nursing aide, cannot be said to be in the "practice
of medicine." A certified public accountant who works as a clerk, cannot be
said to practice his profession as an accountant. In the same way, a lawyer
who is employed as a business executive or a corporate manager, other
than as head or attorney of a Legal Department of a corporation or a
governmental agency, cannot be said to be in the practice of law.
As aptly held by this Court in the case of People vs. Villanueva: 2
Practice is more than an isolated appearance for it
consists in frequent or customary actions, a succession of
acts of the same kind. In other words, it is frequent
habitual exercise (State vs- Cotner, 127, p. 1, 87 Kan. 864,
42 LRA, M.S. 768). Practice of law to fall within the
prohibition of statute has been interpreted as customarily
or habitually holding one's self out to the public as a
lawyer and demanding payment for such services (State
vs. Bryan, 4 S.E. 522, 98 N.C. 644,647.) ... (emphasis
supplied).
It is worth mentioning that the respondent Commission on Appointments in a
Memorandum it prepared, enumerated several factors determinative of
whether a particular activity constitutes "practice of law." It states:
1. Habituality. The term "practice of law" implies
customarily or habitually holding one's self out to the
public as a lawyer (People vs. Villanueva, 14 SCRA 109
citing State v. Boyen, 4 S.E. 522, 98 N.C. 644) such as
when one sends a circular announcing the establishment
of a law office for the general practice of law (U.S. v. Ney
Bosque, 8 Phil. 146), or when one takes the oath of office
as a lawyer before a notary public, and files a

manifestation with the Supreme Court informing it of his

intention to practice law in all courts in the country (People
v. De Luna, 102 Phil. 968).
Practice is more than an isolated appearance for it
consists in frequent or customary action, a succession of
acts of the same kind. In other words, it is a habitual
exercise (People v. Villanueva, 14 SCRA 109 citing State
v. Cotner, 127, p. 1, 87 Kan, 864).
2. Compensation. Practice of law implies that one must
have presented himself to be in the active and continued
practice of the legal profession and that his professional
services are available to the public for compensation, as a
service of his livelihood or in consideration of his said
services. (People v. Villanueva, supra). Hence, charging
for services such as preparation of documents involving
the use of legal knowledge and skill is within the term
"practice of law" (Ernani Pao, Bar Reviewer in Legal and
Judicial Ethics, 1988 ed., p. 8 citing People v. People's
Stockyards State Bank, 176 N.B. 901) and, one who
renders an opinion as to the proper interpretation of a
statute, and receives pay for it, is to that extent, practicing
law (Martin, supra, p. 806 citing Mendelaun v. Gilbert and
Barket Mfg. Co., 290 N.Y.S. 462) If compensation is
expected, all advice to clients and all action taken for them
in matters connected with the law; are practicing law.
(Elwood Fitchette et al., v. Arthur C. Taylor, 94A-L.R. 356359)
3. Application of law legal principle practice or
procedure which calls for legal knowledge, training and
experience is within the term "practice of law".
(Martin supra)
4. Attorney-client relationship. Engaging in the practice of
law presupposes the existence of lawyer-client
relationship. Hence, where a lawyer undertakes an activity
which requires knowledge of law but involves no attorneyclient relationship, such as teaching law or writing law
books or articles, he cannot be said to be engaged in the

practice of his profession or a lawyer (Agpalo, Legal

Ethics, 1989 ed., p. 30). 3
The above-enumerated factors would, I believe, be useful aids in
determining whether or not respondent Monsod meets the constitutional
qualification of practice of law for at least ten (10) years at the time of his
appointment as COMELEC Chairman.
The following relevant questions may be asked:
1. Did respondent Monsod perform any of the tasks which are peculiar to the
practice of law?
2. Did respondent perform such tasks customarily or habitually?
3. Assuming that he performed any of such tasks habitually, did he do so
HABITUALLY FOR AT LEAST TEN (10) YEARS prior to his appointment as
COMELEC Chairman?
Given the employment or job history of respondent Monsod as appears from
the records, I am persuaded that if ever he did perform any of the tasks
which constitute the practice of law, he did not do so HABITUALLY for at
least ten (10) years prior to his appointment as COMELEC Chairman.
While it may be granted that he performed tasks and activities which could
be latitudinarianly considered activities peculiar to the practice of law, like the
drafting of legal documents and the rendering of legal opinion or advice,
such were isolated transactions or activities which do not qualify his past
endeavors as "practice of law." To become engaged in the practice of law,
there must be a continuity, or a succession of acts. As observed by the
Solicitor General in People vs. Villanueva: 4
Essentially, the word private practice of law implies that
one must have presented himself to be in
theactive and continued
practice
of
the
legal
profession and that his professional services are available
to the public for a compensation, as a source of his
livelihood or in consideration of his said services.

ACCORDINGLY, my vote is to GRANT the petition and to declare

respondent Monsod as not qualified for the position of COMELEC Chairman
for not having engaged in the practice of law for at least ten (10) years prior
to his appointment to such position.
CRUZ, J., dissenting:
I am sincerely impressed by the ponencia of my brother Paras but find I
must dissent just the same. There are certain points on which I must differ
with him while of course respecting hisviewpoint.
To begin with, I do not think we are inhibited from examining the
qualifications of the respondent simply because his nomination has been
confirmed by the Commission on Appointments. In my view, this is not a
political question that we are barred from resolving. Determination of the
appointee's credentials is made on the basis of the established facts, not the
discretion of that body. Even if it were, the exercise of that discretion would
still be subject to our review.
In Luego, which is cited in the ponencia, what was involved was the
discretion of the appointing authority tochoose between two claimants to the
same office who both possessed the required qualifications. It was that kind
of discretion that we said could not be reviewed.
If a person elected by no less than the sovereign people may be ousted by
this Court for lack of the required qualifications, I see no reason why we
cannot disqualified an appointee simply because he has passed the
Commission on Appointments.
Even the President of the Philippines may be declared ineligible by this
Court in an appropriate proceeding notwithstanding that he has been found
acceptable by no less than the enfranchised citizenry. The reason is that
what we would be examining is not the wisdom of his election but whether or
not he was qualified to be elected in the first place.
Coming now to the qualifications of the private respondent, I fear that
the ponencia may have been too sweeping in its definition of the phrase
"practice of law" as to render the qualification practically toothless. From the
numerous activities accepted as embraced in the term, I have the
uncomfortable feeling that one does not even have to be a lawyer to be

engaged in the practice of law as long as his activities involve the application
of some law, however peripherally. The stock broker and the insurance
adjuster and the realtor could come under the definition as they deal with or
give advice on matters that are likely "to become involved in litigation."
The lawyer is considered engaged in the practice of law even if his main
occupation is another business and he interprets and applies some law only
as an incident of such business. That covers every company organized
under the Corporation Code and regulated by the SEC under P.D. 902-A.
Considering the ramifications of the modern society, there is hardly any
activity that is not affected by some law or government regulation the
businessman must know about and observe. In fact, again going by the
definition, a lawyer does not even have to be part of a business concern to
be considered a practitioner. He can be so deemed when, on his own, he
rents a house or buys a car or consults a doctor as these acts involve his
knowledge and application of the laws regulating such transactions. If he
operates a public utility vehicle as his main source of livelihood, he would
still be deemed engaged in the practice of law because he must obey the
Public Service Act and the rules and regulations of the Energy Regulatory
Board.
The ponencia quotes an American decision defining the practice of law as
the "performance of any acts . . . in or out of court, commonly understood to
be the practice of law," which tells us absolutely nothing. The decision goes
on to say that "because lawyers perform almost every function known in the
commercial and governmental realm, such a definition would obviously be
too global to be workable."
The effect of the definition given in the ponencia is to consider virtually every
lawyer to be engaged in the practice of law even if he does not earn his
living, or at least part of it, as a lawyer. It is enough that his activities are
incidentally (even if only remotely) connected with some law, ordinance, or
regulation. The possible exception is the lawyer whose income is derived
from teaching ballroom dancing or escorting wrinkled ladies with pubescent
pretensions.
The respondent's credentials are impressive, to be sure, but they do not
persuade me that he has been engaged in the practice of law for ten years
as required by the Constitution. It is conceded that he has been engaged in
business and finance, in which areas he has distinguished himself, but as an
executive and economist and not as a practicing lawyer. The plain fact is that

he has occupied the various positions listed in his resume by virtue of his
experience and prestige as a businessman and not as an attorney-at-law
whose principal attention is focused on the law. Even if it be argued that he
was acting as a lawyer when he lobbied in Congress for agrarian and urban
reform, served in the NAMFREL and the Constitutional Commission
(together with non-lawyers like farmers and priests) and was a member of
the Davide Commission, he has not proved that his activities in these
capacities extended over the prescribed 10-year period of actual practice of
the law. He is doubtless eminently qualified for many other positions worthy
of his abundant talents but not as Chairman of the Commission on Elections.
I have much admiration for respondent Monsod, no less than for Mr. Justice
Paras, but I must regretfully vote to grant the petition.
GUTIERREZ, JR., J., dissenting:
When this petition was filed, there was hope that engaging in the practice of
law as a qualification for public office would be settled one way or another in
fairly definitive terms. Unfortunately, this was not the result.
Of the fourteen (14) member Court, 5 are of the view that Mr. Christian
Monsod engaged in the practice of law (with one of these 5 leaving his vote
behind while on official leave but not expressing his clear stand on the
matter); 4 categorically stating that he did not practice law; 2 voting in the
result because there was no error so gross as to amount to grave abuse of
discretion; one of official leave with no instructions left behind on how he
viewed the issue; and 2 not taking part in the deliberations and the decision.
There are two key factors that make our task difficult. First is our reviewing
the work of a constitutional Commission on Appointments whose duty is
precisely to look into the qualifications of persons appointed to high office.
Even if the Commission errs, we have no power to set aside error. We can
look only into grave abuse of discretion or whimsically and arbitrariness.
Second is our belief that Mr. Monsod possesses superior qualifications in
terms of executive ability, proficiency in management, educational
background, experience in international banking and finance, and instant
recognition by the public. His integrity and competence are not questioned
by the petitioner. What is before us is compliance with a specific requirement
written into the Constitution.

Inspite of my high regard for Mr. Monsod, I cannot shirk my constitutional

duty. He has never engaged in the practice of law for even one year. He is a
member of the bar but to say that he has practiced law is stretching the term
beyond rational limits.
A person may have passed the bar examinations. But if he has not
dedicated his life to the law, if he has not engaged in an activity where
membership in the bar is a requirement I fail to see how he can claim to
have been engaged in the practice of law.
Engaging in the practice of law is a qualification not only for COMELEC
chairman but also for appointment to the Supreme Court and all lower
courts. What kind of Judges or Justices will we have if there main occupation
is selling real estate, managing a business corporation, serving in factfinding committee, working in media, or operating a farm with no active
involvement in the law, whether in Government or private practice, except
that in one joyful moment in the distant past, they happened to pass the bar
examinations?
The Constitution uses the phrase "engaged in the practice of law for at least
ten years." The deliberate choice of words shows that the practice
envisioned is active and regular, not isolated, occasional, accidental,
intermittent, incidental, seasonal, or extemporaneous. To be "engaged" in an
activity for ten years requires committed participation in something which is
the result of one's decisive choice. It means that one is occupied and
involved in the enterprise; one is obliged or pledged to carry it out with intent
and attention during the ten-year period.
I agree with the petitioner that based on the bio-data submitted by
respondent Monsod to the Commission on Appointments, the latter has not
been engaged in the practice of law for at least ten years. In fact, if appears
that Mr. Monsod has never practiced law except for an alleged one year
period after passing the bar examinations when he worked in his father's law
firm. Even then his law practice must have been extremely limited because
he was also working for M.A. and Ph. D. degrees in Economics at the
University of Pennsylvania during that period. How could he practice law in
the United States while not a member of the Bar there?
The professional life of the respondent follows:

1.15.1. Respondent Monsod's activities since his passing

the Bar examinations in 1961 consist of the following:
1. 1961-1963: M.A. in Economics (Ph. D. candidate),
University of Pennsylvania
2. 1963-1970: World Bank Group Economist, Industry
Department; Operations, Latin American Department;
Division Chief, South Asia and Middle East, International
Finance Corporation
3. 1970-1973: Meralco Group Executive of various
companies, i.e., Meralco Securities Corporation, Philippine
Petroleum Corporation, Philippine Electric Corporation
4. 1973-1976: Yujuico Group President, Fil-Capital
Development Corporation and affiliated companies
5. 1976-1978: Finaciera Manila Chief Executive Officer
6. 1978-1986: Guevent Group of Companies Chief
Executive Officer
7. 1986-1987: Philippine Constitutional Commission
Member
8. 1989-1991: The Fact-Finding Commission on the
December 1989 Coup Attempt Member
9. Presently: Chairman of the Board and Chief Executive
Officer of the following companies:
a. ACE Container Philippines, Inc.
b. Dataprep, Philippines
c. Philippine SUNsystems Products, Inc.

d. Semirara Coal Corporation

e. CBL Timber Corporation
Member of the Board of the Following:
a. Engineering Construction Corporation of the Philippines
b. First Philippine Energy Corporation
c. First Philippine Holdings Corporation
d. First Philippine Industrial Corporation
e. Graphic Atelier
f. Manila Electric Company
g. Philippine Commercial Capital, Inc.
h. Philippine Electric Corporation
i. Tarlac Reforestation and Environment Enterprises
j. Tolong Aquaculture Corporation
k. Visayan Aquaculture Corporation
l. Guimaras Aquaculture Corporation (Rollo, pp. 21-22)
There is nothing in the above bio-data which even remotely indicates that
respondent Monsod has given the lawenough attention or a certain degree
of commitment and participation as would support in all sincerity and candor
the claim of having engaged in its practice for at least ten years. Instead of
working as a lawyer, he has lawyers working for him. Instead of giving
receiving that legal advice of legal services, he was the oneadvice and those
services as an executive but not as a lawyer.

The deliberations before the Commission on Appointments show an effort to

equate "engaged in the practice of law" with the use of legal knowledge in
various fields of endeavor such as commerce, industry, civic work, blue
ribbon investigations, agrarian reform, etc. where such knowledge would be
helpful.
I regret that I cannot join in playing fast and loose with a term, which even an
ordinary layman accepts as having a familiar and customary well-defined
meaning. Every resident of this country who has reached the age of
discernment has to know, follow, or apply the law at various times in his life.
Legal knowledge is useful if not necessary for the business executive,
legislator, mayor, barangay captain, teacher, policeman, farmer, fisherman,
market vendor, and student to name only a few. And yet, can these people
honestly assert that as such, they are engaged in the practice of law?
The Constitution requires having been "engaged in the practice of law for at
least ten years." It is not satisfied with having been "a member of the
Philippine bar for at least ten years."
Some American courts have defined the practice of law, as follows:
The practice of law involves not only appearance in court
in connection with litigation but also services rendered out
of court, and it includes the giving of advice or the
rendering of any services requiring the use of legal skill or
knowledge, such as preparing a will, contract or other
instrument, the legal effect of which, under the facts and
conditions involved, must be carefully determined.People
ex rel. Chicago Bar Ass'n v. Tinkoff, 399 Ill. 282, 77 N.E.2d
693; People ex rel. Illinois State Bar Ass'n v. People's
Stock Yards State Bank, 344 Ill. 462,176 N.E. 901, and
cases cited.
It would be difficult, if not impossible to lay down a formula
or definition of what constitutes the practice of law.
"Practicing law" has been defined as "Practicing as an
attorney or counselor at law according to the laws and
customs of our courts, is the giving of advice or rendition
of any sort of service by any person, firm or corporation
when the giving of such advice or rendition of such service

requires the use of any degree of legal knowledge or skill."

Without adopting that definition, we referred to it as being
substantially correct in People ex rel. Illinois State Bar
Ass'n v. People's Stock Yards State Bank, 344 Ill. 462,176
N.E. 901. (People v. Schafer, 87 N.E. 2d 773, 776)

and the like. There is no doubt but that he has engaged in

these practices over the years and has charged for his
services in that connection. ... (People v. Schafer, 87 N.E.
2d 773)
xxx xxx xxx

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

... An attorney, in the most general sense, is a person

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

xxx xxx xxx

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

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

... Practice is more than an isolated appearance, for it consists in frequent or

customary actions, a succession of acts of the same kind. In other words, it
is frequent habitual exercise (State v. Cotner, 127, p. 1, 87 Kan. 864, 42
LRA, M.S. 768). Practice of law to fall within the prohibition of statute has
been interpreted as customarily or habitually holding one's self out to the
public, as a lawyer and demanding payment for such services. ... . (at p.
112)
It is to be noted that the Commission on Appointment itself
recognizes habituality as a required component of the meaning of practice of
law in a Memorandum prepared and issued by it, to wit:
l. Habituality. The term 'practice of law' implies
customarilyor habitually holding one's self out to the public
as a lawyer (People v. Villanueva, 14 SCRA 109 citing
State v. Bryan, 4 S.E. 522, 98 N.C. 644) such as when
one sends a circular announcing the establishment of a
law office for the general practice of law (U.S. v. Noy
Bosque, 8 Phil. 146), or when one takes the oath of office
as a lawyer before a notary public, and files a
manifestation with the Supreme Court informing it of his
intention to practice law in all courts in the country (People
v. De Luna, 102 Phil. 968).
Practice is more than an isolated appearance, for it
consists in frequent or customary action, a succession of
acts of the same kind. In other words, it is a habitual
exercise (People v. Villanueva, 14 SCRA 1 09 citing State
v. Cotner, 1 27, p. 1, 87 Kan, 864)." (Rollo, p. 115)
xxx xxx xxx
While the career as a businessman of respondent Monsod may have
profited from his legal knowledge, the use of such legal knowledge is
incidental and consists of isolated activities which do not fall under the
denomination of practice of law. Admission to the practice of law was not
required for membership in the Constitutional Commission or in the FactFinding Commission on the 1989 Coup Attempt. Any specific legal activities
which may have been assigned to Mr. Monsod while a member may be
likened to isolated transactions of foreign corporations in the Philippines

which do not categorize the foreign corporations as doing business in the

Philippines. As in the practice of law, doing business also should be active
and continuous. Isolated business transactions or occasional, incidental and
casual transactions are not within the context of doing business. This was
our ruling in the case of Antam Consolidated, Inc. v. Court of appeals, 143
SCRA 288 [1986]).
Respondent Monsod, corporate executive, civic leader, and member of the
Constitutional Commission may possess the background, competence,
integrity, and dedication, to qualify for such high offices as President, VicePresident, Senator, Congressman or Governor but the Constitution in
prescribing the specific qualification of having engaged in the practice of law
for at least ten (10) years for the position of COMELEC Chairman has
ordered that he may not be confirmed for that office. The Constitution
charges the public respondents no less than this Court to obey its mandate.
I, therefore, believe that the Commission on Appointments committed grave
abuse of discretion in confirming the nomination of respondent Monsod as
Chairman of the COMELEC.
I vote to GRANT the petition.
Bidin, J., dissent

Republic of the Philippines

Supreme Court
Baguio City
THIRD DIVISION
JOHN HILARIO y SIBAL,
Petitioner,

G.R. No. 161070

Present:

- versus -

YNARES-SANTIAGO, J.
Chairperson,
AUSTRIA-MARTINEZ,
CHICO-NAZARIO,
NACHURA, and
REYES, JJ.

PEOPLE OF THE PHILIPPINES,

Promulgated:
Respondent.
April 14, 2008
x--------------------------------------------------x
DECISION
AUSTRIA-MARTINEZ, J.:

Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court
filed by John Hilario y Sibal (petitioner), seeking to annul and set aside the Resolutions
dated August 19, 2003[1] and November 28 2003[2] of the Court of Appeals in CA-G.R.
SP No. 75820.
The antecedents are as follows:

Petitioner, together with one Gilbert Alijid (Alijid), was charged with two counts [3] of

notice of appeal was filed by his lawyer in defiance of his clear instructions; and that the

Murder in the Regional Trial Court (RTC), Branch 76, Quezon City to which petitioner,

RTC Decision showed that it was received by his counsel on February 1, 2002 and yet

assisted by counselde parte, pleaded not guilty.

the counsel did not inform him of any action taken thereon.

During trial, Atty. Raul Rivera of the Public Attorney's Office (PAO), counsel of Alijid,

Petitioner claimed that he had a meritorious defense, to wit:

took over representing petitioner in view of the death of the latter's counsel.

1.

On December 5, 2001, the RTC rendered its Decision[4] finding petitioner and

The Decision dated December 5, 2001, on page 16 thereof

states an imprisonment term of eight (8) years and one (1) day
of Prision Mayor to fourteen (14) years and eight (8) months
of Reclusion Temporal - a matter which ought to be rectified;

his co-accused Alijid guilty beyond reasonable doubt of the crime of homicide and

2.

sentencing them to suffer imprisonment of eight (8) years and one (1) day

3.

No ruling was laid down on the stipulated facts (Decision, p. 3)

relative to the (1) absence of counsel during the alleged inquest, and (2)
absence of warrant in arresting the accused after ten (10) days from the
commission of the crime;

4.

Absence of a corroborating witness to the purported lone

eyewitness, as against the corroborated testimony of accusedpetitioner's alibi;

5.

The Commission on Human Rights investigation on the torture of

the accused-petitioner;

of prision mayor to fourteen (14) years and eight (8) months of reclusion temporal in
each count.

On May 10, 2002, petitioner, this time unassisted by counsel, filed with the RTC a
Petition for Relief[5] from the Decision dated December 5, 2001 together with an
affidavit of merit. In his petition, petitioner contended that at the time of the promulgation
of the judgment, he was already confined at Quezon City Jail and was directed to be

6.

The undersigned is a first time offender;

and others.[6]

committed to the National Penitentiary inMuntinlupa; that he had no way of personally

filing the notice of appeal thus he instructed his lawyer to file it on his behalf; that he had

Petitioner argued that he was meted a total of 16 years imprisonment or almost equal

no choice but to repose his full trust and confidence to his lawyer; that he had instructed

to the previous capital punishment of 20 years which was given an automatic review by

his lawyer to file the necessary motion for reconsideration or notice of appeal; that on

the Supreme Court, thus it is of greater interest of justice that his case be reviewed by

May 2, 2002, he was already incarcerated at the New Bilibid Prisons,Muntinlupa City

the appellate court; and that no damage will be sustained if the appeal is given due

and learned from the grapevine of his impending transfer to the Iwahig Penal

course since he continues to languish in jail while the Petition for Relief is pending.

Colony, Palawan; that believing that the notice of appeal filed by his counsel prevented
the Decision dated December 5, 2001 from becoming final to warrant his transfer, he
instructed his representative to get a copy of the notice of appeal from the RTC; that no

The Assistant City Prosecutor filed his Comment on the Petition for Relief where he
contended that the petition should no longer be entertained; and that perfection of

Petitioner, again by himself, filed a petition for certiorari with the CA on the ground that

appeal in the manner and within the period permitted by law was not only mandatory

the RTC committed grave abuse of discretion in dismissing his petition for relief. He

but jurisdictional and failure to perfect the appeal rendered the judgment final

claims that the delay in appealing his case without his fault constitutes excusable

and executory.

negligence to warrant the granting of his petition for relief.

In a Resolution dated August 19, 2003, the CA dismissed the petition in this wise:

The records do not show that the RTC required petitioner's counsel to whom petitioner
attributed the act of not filing the notice of appeal to file his comment.
On September 30, 2002, petitioner's counsel filed a Withdrawal of Appearance [7] from
the case with petitioner's consent. Again, the documents before us do not show the
action taken by the RTC thereon.

It appearing that petitioner in the instant petition for certiorari failed to attach
the following documents cited in his petition, namely:
1.
The December 5, 2001 Decision;
2.
Comment of the City Prosecutor;
3.
Manifestation
of
petitioner's
counsel
de oficio signifying his withdrawal as petitioner's counsel.
The instant petition for certiorari is hereby DISMISSED pursuant to Section 2,
Rule 42 of the 1997 Rules of Civil Procedure and as prayed for by the
Solicitor General.[10]

In an Order[8] dated December 13, 2002, the RTC dismissed petitioner's petition for

Petitioner's motion for reconsideration was denied in a Resolution dated November 28,

relief with the following disquisition:

2003 for having been filed beyond the 15-day reglementary period, in violation of

After a careful study of the instant petition and the arguments

raised by the contending parties, the Court is not persuaded by
petitioner/accused's allegation that he was prevented from filing a notice of
appeal due to excusable negligence of his counsel.
Accused's allegation that he indeed specifically instructed his
counsel to file a notice of appeal of the Decision dated [sic] and the latter did
not heed his instruction is at best self-serving and unsubstantiated and thus,
unworthy of credence. At any rate, even if said omission should be
considered as negligence, it is a well-settled rule that negligence of counsel is
binding on the client. x x x Besides, nowhere does it appear that
accused/petitioner was prevented from fairly presenting his defense nor does
it appear that he was prejudiced as the merits of this case were adequately
passed upon in the Decision dated December 5, 2001.
It must also be pointed out that in his petition for relief, he
stated that he instructed his counsel to file the necessary motion for
reconsideration or notice of appeal of the Decision dated December 5,
2001, whereas in his affidavit of merit, he claimed to have told his
counsel to simply file a notice of appeal thereof.[9] (Emphasis supplied)

Section 1, Rule 52 of theRules of Court and for failure to attach to the petition, the
relevant and pertinent documents. The CA also stressed that procedural rules are not
to be belittled simply because their non-observance may have resulted in prejudice to a
party's substantive rights.

Hence, herein recourse filed by petitioner, still unassisted by counsel, raising the
following issues:
Whether or not the delay in appealing the instant case due to the defiance of
the petitioner's counsel de oficio to seasonably file a Notice of Appeal,
constitutes excusable negligence to entitle the undersigned detention
prisoner/ petitioner to pursue his appeal?
Whether or not pro hac vice, the mere invocation of justice warrants the
review of a final and executory judgment?

Petitioner contends that the negligence of his counsel de oficio cannot be binding on

The CA dismissed the petition for certiorari filed under Rule 65 of the Rules of Court, in

him for the latter's defiance of his instruction to appeal automatically breaks the fiduciary

relation to Rule 46, on the ground that petitioner failed to attach certain documents

relationship betweencounsel-client and cannot be against the client who was

which the CA found to be relevant and pertinent to the petition for certiorari.

prejudiced; that this breach of trust cannot easily be concocted in this situation
considering that it was a counsel de oficio, a lawyer from PAO, who broke the fiduciary

The requirements to attach such relevant pleadings under Section 1, Rule 65 is read in

relationship; that the assailed CA Resolutions both harped on technicalities to uphold

relation to Section 3, Rule 46 of the Rules of Court, thus:

the dismissal by the RTC of his petition for relief; that reliance on technicalities to the
prejudice of petitioner who is serving 14 years imprisonment for a crime he did not
commit is an affront to the policy promulgated by this Court that dismissal purely on
technical grounds is frowned upon especially if it will result to unfairness; and that it
would have been for the best interest of justice for the CA to have directed the petitioner
to complete the records instead of dismissing the petition outright.

Section 1, Rule 65 provides:

SECTION. 1. Petition for certiorari.
xxxx
The petition shall be accompanied by a certified true copy of the
judgment, order or resolution subject thereof, copies of all pleadings and
documents relevant and pertinent thereto x x x.
Section 3, Rule 46, provides:

In his Comment, the OSG argues that the mere invocation of justice does not warrant
the review of an appeal from a final and executory judgment; that perfection of an
appeal in the manner and within the period laid down by law is not only mandatory
but jurisdictional and failure to perfect the appeal renders the judgment sought to be
reviewed final and not appealable; and that petitioner's appeal after the finality of
judgment of conviction is an exercise in futility, thus the RTC properly dismissed
petitioner's petition for relief from judgment. The OSG further claims that notice to
counsel is notice to clients and failure of counsel to notify his client of an adverse
judgment would not constitute excusable negligence and therefore binding on the
client.

We grant the petition.

SEC. 3. Contents and filing of petition; effect of non-compliance

with requirements.
xxxx
[The petition] shall be x x x accompanied by a clearly legible
duplicate original or certified true copy of the judgment, order, resolution, or
ruling subject thereof, such material portions of the record as are referred to
therein, and other documents relevant or pertinent thereto x x x.
xxxx
The failure of the petitioner to comply with any of the foregoing
requirements shall be sufficient ground for the dismissal of the petition.

The initial determination of what pleadings, documents or orders are relevant and
pertinent to the petition rests on the petitioner. If, upon its initial review of the petition, the
CA is of the view that additional pleadings, documents or order should have been

submitted and appended to the petition, the following are its options: (a) dismiss the

Even the most experienced lawyers get tangled in the web of

procedure. The demand as much from ordinary citizens whose
only compelle intrare is their sense of right would turn the legal system into
an intimidating monstrosity where an individual may be stripped of his
property rights not because he has no right to the property but because he
does not know how to establish such right.

petition under the last paragraph of Rule 46 of the Rules of Court; (b) order the
petitioner to submit the required additional pleadings, documents, or order within a
specific period of time; or (c) order the petitioner to file an amended petition appending
thereto the required pleadings, documents or order within a fixed period.[11]

The right to counsel is absolute and may be invoked at all

times. More so, in the case of an on-going litigation, it is a right that must be
exercised at every step of the way, with the lawyer faithfully keeping his client
company.

The RTC Decision dated December 5, 2001, finding petitioner guilty of two counts of
homicide, the Comment of the City Prosecutor as well as the counsel's withdrawal of

No arrangement or interpretation of law could be as absurd

as the position that the right to counsel exists only in the trial courts
and that thereafter, the right ceases in the pursuit of the appeal.
[14]
(Emphasis supplied)

appearance were considered by the CA as relevant and pertinent to the petition

for certiorari, thus it dismissed the petition for failure to attach the same. However, the
CA failed to consider the fact that the petition before it was filed by petitioner, a detained
prisoner, without the benefit of counsel. A litigant who is not a lawyer is not expected to

The filing of the petition for certiorari by petitioner without counsel should have alerted

know the rules of procedure. In fact, even the most experienced lawyers get tangled in

the CA and should have required petitioner to cause the entry of appearance of his

the web of procedure.[12] We have held in a civil case that to demand as much from

counsel. Although the petition filed before the CA was a petition for certiorari assailing

ordinary citizens whose only compelle intrare is their sense of right would turn the legal

the RTC Order dismissing the petition for relief, the ultimate relief being sought by

system into an intimidating monstrosity where an individual may be stripped of his

petitioner was to be given the chance to file an appeal from his conviction, thus the

property rights not because he has no right to the property but because he does not

need for a counsel is more pronounced. To repeat the ruling in Telan, no arrangement

know how to establish such right.[13] This finds application specially if the liberty of a

or interpretation of law could be as absurd as the position that the right to counsel exists

person is at stake. As we held in Telan v. Court of Appeals:

only in the trial courts and that thereafter, the right ceases in the pursuit of the appeal.
[15]

The right to counsel in civil cases exists just as forcefully as in

criminal cases, specially so when as a consequence, life, liberty, or property
is subjected to restraint or in danger of loss.
In criminal cases, the right of an accused person to be
assisted by a member of the bar is immutable. Otherwise, there would
be a grave denial of due process. Thus, even if the judgment had
become final and executory, it may still be recalled, and the accused
afforded the opportunity to be heard by himself and counsel.
xxxx

It is even more important to note that petitioner was not assisted by counsel when he

filed his petition for relief from judgment with the RTC.

It cannot be overstressed therefore, that in criminal cases, as held in Telan,

the right of an accused person to be assisted by a member of the bar is immutable;
otherwise, there would be a grave denial of due process.

Cases should be determined on the merits after full opportunity to all parties for
ventilation of their causes and defenses, rather than on technicality or some procedural
imperfections. In that way, the ends of justice would be served better.[16]

The CA denied petitioner's motion for reconsideration for having been filed late. It
appears that

the

CA Resolution

dismissing

the

petition

for certiorari was

slaves to or robots of technical rules, shorn of judicial discretion.

That is precisely why courts in rendering justice have always been,
as they ought to be guided by the norm that when on the balance,
technicalities take a backseat against substantive rights, and not
the other way around. Truly then, technicalities, in the appropriate
language of Justice Makalintal, "should give way to the realities of
the situation.
Indeed, the emerging trend in the rulings of this Court is to afford
every party litigant the amplest opportunity for the proper and just
determination of his cause, free from the constraints of technicalities.[18]

received at the address written in the petition on September 1, 2003, and that
petitioner filed his motion for reconsideration on September 18, 2003, or two days late.

While as a general rule, the failure of petitioner to file his motion for reconsideration
within the 15-day reglementary period fixed by law rendered the resolution final
and executory, we have on some occasions relaxed this rule. Thus, in Barnes
v. Padilla[17] we held:
However, this Court has relaxed this rule in order to serve
substantial justice considering (a) matters of life, liberty, honor or property, (b)
the existence of special or compelling circumstances, (c) the merits of the
case, (d) a cause not entirely attributable to the fault or negligence of the
party favored by the suspension of the rules, (e) a lack of any showing that
the review sought is merely frivolous and dilatory, and (f) the other party will
not be unjustly prejudiced thereby.
Invariably, rules of procedure should be viewed as mere tools
designed to facilitate the attainment of justice. Their strict and rigid application,
which would result in technicalities that tend to frustrate rather than promote
substantial justice, must always be eschewed. Even the Rules of Court
reflects this principle. The power to suspend or even disregard rules can
be so pervasive and compelling as to alter even that which this Court itself
had already declared to be final.
In De Guzman v. Sandiganbayan, this Court, speaking through the
late Justice Ricardo J. Francisco, had occasion to state:
The Rules of Court was conceived and promulgated to
set forth guidelines in the dispensation of justice but not to bind and
chain the hand that dispenses it, for otherwise, courts will be mere

Moreover, in Basco v. Court of Appeals,[19] we also held:

Nonetheless, procedural rules were conceived to aid the attainment of
justice. If a stringent application of the rules would hinder rather than serve
the demands of substantial justice, the former must yield to the latter.
Recognizing this, Section 2, Rule 1 of the Rules of Court specifically provides
that:
SECTION 2. Construction. These rules shall be liberally
construed in order to promote their object and to assist the parties in
obtaining just, speedy, and inexpensive determination of every action and
proceeding.[20]

Petitioner claims that he actually received the CA Resolution dismissing his petition
for certiorari only on September 4, 2003 even as the same Resolution was earlier
received on September 1, 2003 at the address written in his petition, i.e., c/o Robert
S. Bacuraya, No. 9 Iris St., West Fairview, 1118, Quezon City, by a certain
Leonora Coronel. Apparently, Bacuraya is not a lawyer.Ordinarily, petitioner being
detained at the National Penitentiary, Muntinlupa, the CA should have also sent a
copy of such Resolution to his place of detention. Considering that petitioner only
received the Resolution on September 4, 2003, we find the two days delay in filing his
motion for reconsideration pardonable as it did not cause any prejudice to the other
party. There is no showing that petitioner was motivated by a desire to delay the

proceedings or obstruct the administration of justice. The suspension of the Rules is

Petitioner insists that the failure of his counsel to timely file a notice of appeal of his

warranted in this case since the procedural infirmity was not entirely attributable to the

judgment of conviction despite his explicit instruction to do so constitutes excusable

fault or negligence of petitioner.

negligence and so his petition for relief should have been granted.
We find that the RTC committed grave abuse of discretion in dismissing petitioner's

Rules of procedure are mere tools designed to expedite the decision or

petition for relief from judgment.

resolution of cases and other matters pending in court. A strict and rigid application of
rules that would result in technicalities that tend to frustrate rather than promote
substantial justice must be avoided.

[21]

Petitioner was represented in the RTC by Atty. Rivera of the PAO. Section 1, Article IV
of PAO Memorandum Circular No.18 series of 2002, the Amended Standard Office
Procedures

in

Extending

Legal

Assistance (PAO

Memorandum

Circular),

In dismissing the petition for certiorari filed before it, the CA clearly put a

provides that all appeals must be made upon the request of the client himself and only

premium on technicalities and brushed aside the issue raised before it by petitioner, i.e.,

meritorious cases shall be appealed; whileSection 2, Article II of PAO Memorandum

whether the RTC committed grave abuse of discretion in dismissing petitioner's petition

Circular provides that in criminal cases, the accused enjoys the constitutional

for relief thus preventing him from taking an appeal from his conviction.

presumption of innocence until the contrary is proven, hence cases of defendants in

criminal actions are considered meritorious and therefore, should be appealed, upon

Even if the judgment had become final and executory, it may still be recalled,

the client's request.

and the accused afforded the opportunity to be heard by himself and counsel.
[22]

However, instead of remanding the case to the CA for a decision on the merits, we

opt to resolve the same so as not to further delay the final disposition of this case.

In this case, petitioner claims he had instructed the PAO lawyer to file an
appeal. Under the PAO Memorandum Circular, it was the duty of the latter to perfect
the appeal. Thus, in determining whether the petition for relief from judgment is based

The RTC denied the petition for relief as it found petitioner's claim that his counsel did

on a meritorious ground, it was crucial to ascertain whether petitioner indeed gave

not heed his instruction to file an appeal to be unsubstantiated and self serving; and

explicit instruction to the PAO lawyer to file an appeal but the latter failed to do so.

that if there was indeed such omission committed by the counsel, such negligence is
binding on the client.

To determine the veracity of petitioner's claim, it was incumbent upon the RTC to have
required the PAO lawyer to comment on the petition for relief. However, it
appears from the records that the RTC only required the City Prosecutor to file a
comment on the petition.

The RTC Order dismissing the petition for relief did not touch on the question whether
the PAO lawyer was indeed negligent in not filing the appeal as it merely stated that
even if said omission,i.e., not filing the appeal despite his clients instruction to do so,

his case. In a criminal proceeding, where certain evidence was not presented
because of counsel's error or incompetence, the defendant in order to secure
a new trial must satisfy the court that he has a good defense and that the
acquittal would in all probability have followed the introduction of the omitted
evidence. What should guide judicial action is that a party be given the fullest
opportunity to establish the merits of his action or defense rather than for him
to lose life, liberty, honor or property on mere technicalities.[26]

should be considered as negligence, it is a well-settled rule that negligence of counsel is

binding on the client.

The PAO lawyer, Atty. Rivera, filed his Withdrawal of Appearance

on September

30,

2002,

almost three

months

before

the

RTC

While as a general rule, negligence of counsel may not be condoned and should bind

rendered its assailed Order dated December 13, 2002,dismissing the petition for

the client,[23] the exception is when the negligence of counsel is so gross, reckless and

relief. The RTC had ample time to require the PAO lawyer to comment on the petition

inexcusable that the client is deprived of his day in court.

[24]

In Aguilar v. Court of

Appeals,[25] we held:

for relief from judgment, before issuing the questioned Order. Had the RTC done so,
there would have been a factual basis for the RTC to determine whether or not the

x x x Losing liberty by default of an insensitive lawyer should be

frowned upon despite the fiction that a client is bound by the mistakes of his
lawyer. The established jurisprudence holds:
xxxx

PAO lawyer was grossly negligent; and eventually, whether the petition for relief from
judgment is meritorious. If there was no instruction from petitioner to file an appeal, then
there was no obligation on the part of the PAO lawyer to file an appeal as stated in the
PAO Memorandum Circular and negligence could not be attributed to him. However, if

The function of the rule that negligence or mistake of counsel in

procedure is imputed to and binding upon the client, as any other procedural
rule, is to serve as an instrument to advance the ends of justice. When in the
circumstances of each case the rule desert its proper office as an aid to
justice and becomes its great hindrance and chief enemy, its rigors must be
relaxed to admit exceptions thereto and to prevent a manifest miscarriage of
justice.
xxxx
The court has the power to except a particular case from the
operation of the rule whenever the purposes of justice require it.

indeed there was such an instruction to appeal but the lawyer failed to do so, he could
be considered negligent.

Thus, there was no basis for the RTC to conclude that the claim
of petitioner that he instructed the PAO lawyer to file an appeal as self-serving and
unsubstantiated. The RTC's dismissal of the petition for relief was done with grave
abuse of discretion amounting to an undue denial of the petitioner's right to appeal.

xxxx
If the incompetence, ignorance or inexperience of counsel is so
great and the error committed as a result thereof is so serious that the client,
who otherwise has a good cause, is prejudiced and denied his day in court,
the litigation may be reopened to give the client another chance to present

The RTC faulted petitioner for claiming in his petition for relief that he instructed his
counsel to file the necessary motion for reconsideration or notice of appeal; while in his

affidavit of merit, he claimed to have told his counsel to simply file a notice of

Regional Trial Court of Quezon City, Branch 76, is SET ASIDE. The RTC is hereby

appeal. We do not find such circumstance sufficient ground to dismiss the

ordered to require Atty. Raul Rivera of the Public Attorney's Office to file his comment on

petition considering that he filed the petition for relief unassisted by counsel.

the

petition

for

relief from

judgment filed

by

petitioner, hold

hearing

thereon, and thereafter rule on the merits of the petition for relief from judgment, with
In all criminal prosecutions, the accused shall have the right to appeal in the manner

dispatch.

prescribed by law. The importance and real purpose of the remedy of appeal has been

ENBANC IN RE: PETITION TO SIGN IN THE ROLL OF ATTORNEYS

emphasized in Castro v. Court of Appeals [27] where we ruled that an appeal is an

MICHAELA. MEDADO, Petitioner. B.M. NO. 2540 Present: SERENO, CJ,

essential part of our judicial system and trial courts are advised to proceed with caution

CARPIO, VELASCO, JR., LEONARDO-DE CASTRO, BRION,* PERALTA** '

so as not to deprive a party of the right to appeal and instructed that every party-litigant

BERSAMIN,**

should be afforded the amplest opportunity for the proper and just disposition of his

MENDOZA**

cause, freed from the constraints of technicalities. While this right is statutory, once it

Promulgated: SEPTEMBER 24, 201 X - - - - - - - - - - - - - - - - - - - - - -- - - - - -

is granted by law, however, its suppression would be a violation of due process,

- - - - - - - - - - - - - - - - - - - - - - - X RESOLlJTION SERENO, CJ: We resolve

a right guaranteed by the Constitution. Thus, the importance of finding out whether

the instant Petition to Sign in the Roll of Attomeys filed by petitioner Michael

petitioner's loss of the right to appeal was due to the PAO lawyer's negligence and not

A. Medado (Medado ). Medado graduated from the University of the

at all attributed to petitioner.

Philippines with the degree of Bachelor of Laws in 1979 1 and passed the

DEL
'

CASTILLO,

REYES,

ABAD,

VILLARAMA,

PERLAS-BERNABE,

and

JR.,

PEREZ,

LEONEN,

JJ.

same year's bar examinations with a general weighted average of 82.7? ' On
However,

we

cannot,

in

the

present

petition

for

review

leave. '* On oflicial leave 1 Rollo, p. I; Petition dated 6 February 20 i 2. 2 ld

on certiorari, make a conclusive finding that indeed there was excusable negligence

Resolution 2 B.M. No. 2540 On 7 May 1980, he took the Attorneys Oath at

on the part of the PAO lawyer which prejudiced petitioner's right to appeal his

the Philippine International Convention Center (PICC) together with the

conviction. To do so would be pure speculation or conjecture. Therefore, a remand of

successful bar examinees.3 He was scheduled to sign in the Roll of

this case to the RTC for the proper determination of the merits of the petition for relief

Attorneys on 13 May 1980,4 but he failed to do so on his scheduled date,

from judgment is just and proper.

allegedly because he had misplaced the Notice to Sign the Roll of

Attorneys5 given by the Bar Office when he went home to his province for a

WHEREFORE, the petition is GRANTED. The Resolutions dated August 19,

vacation.6 Several years later, while rummaging through his old college files,

2003 and November

Appeals

Medado found the Notice to Sign the Roll of Attorneys. It was then that he

are REVERSED and SET ASIDE. The Order datedDecember 13, 2002 of the

realized that he had not signed in the roll, and that what he had signed at the

28, 2003 of

the

Court

of

entrance of the PICC was probably just an attendance record.7 By the time

practice of law. At the outset, we note that not allowing Medado to sign in the

Medado found the notice, he was already working. He stated that he was

Roll of Attorneys would be akin to imposing upon him the ultimate penalty of

mainly doing corporate and taxation work, and that he was not actively

disbarment, a penalty that we have reserved for the most serious ethical

involved in litigation practice. Thus, he operated under the mistaken belief

transgressions of members of the Bar. In this case, the records do not show

[that] since he ha[d] already taken the oath, the signing of the Roll of

that this action is warranted. For one, petitioner demonstrated good faith and

Attorneys was not as urgent, nor as crucial to his status as a lawyer;8 and

good moral character when he finally filed the instant Petition to Sign in the

the matter of signing in the Roll of Attorneys lost its urgency and

Roll of Attorneys. We note that it was not a third party who called this Courts

compulsion, and was subsequently forgotten.9 In 2005, when Medado

attention to petitioners omission; rather, it was Medado himself who

attended Mandatory Continuing Legal Education (MCLE) seminars, he was

acknowledged his own lapse, albeit after the passage of more than 30 years.

required to provide his roll number in order for his MCLE compliances to be

When asked by the Bar Confidant why it took him this long to file the instant

credited.10 Not having signed in the Roll of Attorneys, he was unable to

petition, Medado very candidly replied: Mahirap hong i-explain yan pero, yun

provide his roll number. About seven years later, or on 6 February 2012,

bang at the time, what can you say? Takot ka kung anong mangyayari sa

Medado filed the instant Petition, praying that he be allowed to sign in the

yo, you dont know whats gonna happen. At the same time, its a

Roll of Attorneys.11 The Office of the Bar Confidant (OBC) conducted a

combination of apprehension and anxiety of whats gonna happen. And,

clarificatory conference on the matter on 21 September 201212 and

finally its the right thing to do. I have to come here sign the roll and take

submitted a Report and Recommendation to this Court on 4 February

the oath as necessary.16 For another, petitioner has not been subject to any

2013.13 The OBC recommended that the instant petition be denied for

action for disqualification from the practice of law,17 which is more than what

petitioners gross negligence, gross misconduct and utter lack of merit.14 It

we can say of other individuals who were successfully admitted as members

explained that, based on his answers during the clarificatory conference,

of the Philippine Bar. For this Court, this fact demonstrates that petitioner

petitioner could offer no valid justification for his negligence in signing in the

strove to adhere to the strict requirements of the ethics of the profession,

Roll of Attorneys.15 3 Id. at 2. 4 Id. 5 Id. at 10. 6 Id. at 2. 7 Id. 8 Id. 9 Id. 10

and that he has prima facie shown that he possesses the character required

Id. at 3. 11 Id. at 4. 12 Id. at 20; TSN, 21 September 2012. 13 Id. at 35-43;

to be a member of the Philippine Bar. Finally, Medado appears to have been

Report and Recommendation of the OBC dated 24 January 2013. 14 Id. at

a competent and able legal practitioner, having held various positions at the

42. 15 Id. Resolution 3 B.M. No. 2540 After a judicious review of the records,

Laurel Law Office,18 Petron, Petrophil Corporation, the Philippine National

we grant Medados prayer in the instant petition, subject to the payment of a

Oil Company, and the Energy Development Corporation.19 All these

fine and the imposition of a penalty equivalent to suspension from the

demonstrate Medados worth to become a full-fledged member of the

Philippine Bar. While the practice of law is not a right but a privilege,20 this

knowledge, he chose to continue practicing law without taking the necessary

Court will not unwarrantedly withhold this privilege from individuals who have

steps to complete all the requirements for admission to the Bar, he willfully

shown mental fitness and moral fiber to withstand the rigors of the

engaged in the unauthorized practice of law. Under the Rules of Court, the

profession. 16 Rollo, p. 28; Report and Recommendation of the OBC dated

unauthorized practice of law by ones assuming to be an attorney or officer

24 January 2013. 17 Id. at 3; Petition dated 6 February 2012. 18 Id. at 22;

of the court, and acting as such without authority, may constitute indirect

TSN, 21 September 2012, p. 3. 19 Id. at 34; id. at 15. 20 Barcenas v. Alvero,

contempt of court,27 which is punishable by fine or imprisonment or both.28

A.C. No. 8159, 23 April 2010, 619 SCRA 1, 11. Resolution 4 B.M. No. 2540

Such a finding, however, is in the nature of criminal contempt29 and must be

That said, however, we cannot fully exculpate petitioner Medado from all

reached after the filing of charges and the conduct of hearings.30 In this

liability for his years of inaction. Petitioner has been engaged in the practice

case, while it appears quite clearly that petitioner committed indirect

of law since 1980, a period spanning more than 30 years, without having

contempt of court by knowingly engaging in unauthorized practice of law, we

signed in the Roll of Attorneys.21 He justifies this behavior by characterizing

refrain from making any finding of liability for indirect contempt, as no formal

his acts as neither willful nor intentional but based on a mistaken belief and

charge pertaining thereto has been filed against him. 21 Rollo, p. 35; TSN,

an honest error of judgment.22 We disagree. While an honest mistake of

21 September 2012, p. 16. 22 Id. at 3; Petition dated 6 February 2012. 23

fact could be used to excuse a person from the legal consequences of his

Wooden v. Civil Service Commission, 508 Phil. 500, 515 (2005). 24 Manuel

acts23 as it negates malice or evil motive,24 a mistake of law cannot be

v. People, 512 Phil. 818, 836 (2005). 25 Id. 26 Aguirre v. Rana, 451 Phil.

utilized as a lawful justification, because everyone is presumed to know the

428, 435 (2003). 27 RULES OF COURT, Rule 71, Sec. 3(e). 28 Tan v.

law and its consequences.25 Ignorantia facti excusat; ignorantia legis

Balajadia, 519 Phil. 632 (2006). 29 Id. 30 RULES OF COURT, Rule 71, Sec.

neminem excusat. Applying these principles to the case at bar, Medado may

3. Resolution 5 B.M. No. 2540 Knowingly engaging in unauthorized practice

have at first operated under an honest mistake of fact when he thought that

of law likewise transgresses Canon 9 of 'the Code of Professional

what he had signed at the PICC entrance before the oath-taking was already

Responsibility, which provides: CANON 9 - A lawyer shall not, directly or

the Roll of Attorneys. However, the moment he realized that what he had

indirectly, assist in the unauthorized practice of law. While a reading of

signed was merely an attendance record, he could no longer claim an

Canon 9 appears to merely prohibit lawyers from assisting in the

honest mistake of fact as a valid justification. At that point, Medado should

unauthorized practice of law, the unauthorized practice of law by the lawyer

have known that he was not a full-fledged member of the Philippine Bar

himself is subsumed under this provision, because at the heart of Canon 9 is

because of his failure to sign in the Roll of Attorneys, as it was the act of

the lawyer's duty to prevent the unauthorized practice of law. This duty

signing therein that would have made him so.26 When, in spite of this

likewise applies to law students and Bar candidates. As aspiring members of

the Bar, they are bound to comport themselves in accordance with the
ethical standards of the legal profession. Turning now to the applicable
penalty, previous violations of Canon 9 have warranted the penalty of
suspension from the practice of law. 31 As Medado is not yet a full-fledged
lawyer, we cannot suspend him from the practice of law. However, we see it
fit to impose upon him a penalty akin to suspension by allowing him to sign
in the Roll of Attorneys one ( 1) year after receipt of this Resolution. For his
transgression of the prohibition against the unauthorized practice of law, we
likewise see it fit to fine him in the amount of P32,000. During the one year
period, petitioner is warned that he is not allowed to engage in the practice
of law, and is sternly warned that doing any act that constitutes practice of
law before he has signed in the Roll of Attorneys will be dealt with severely
by this Court. WHEREFORE, the instant Petition to Sign in the Roll of
Attorneys is hereby GRANTED. Petitioner Michael A. Medado is ALLOWED

THIRD DIVISION

JONAR SANTIAGO, A.C. No. 6252

Complainant,
- versus Atty. EDISON V. RAFANAN,
Respondent. October 5, 2004

to sign in the Roll of Attorneys ONE (1) YEAR after receipt of this Resolution.

x -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- x

Petitioner is likewise ORDERED to pay a FINE of P32,000 for his

DECISION

unauthorized practice of law. During the one year period, petitioner is NOT
ALLOWED to practice law, and is STERNLY WARNED that doing any act

PANGANIBAN, J

that constitutes practice of law before he has signed in the Roll of Attorneys
will be dealt witp severely by this Court. Let a copy of this Resolution 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
courts in the country. SO ORDERED.
Notaries public are expected to exert utmost care in the performance of their
duties, which are impressed with public interest. They are enjoined to

comply faithfully with the solemnities and requirements of the Notarial

Canons 12.07[5] and 12.08 of the Code of Professional Responsibility

Law. This Court will not hesitate to mete out appropriate sanctions to those

(CPR).

who violate it or neglect observance thereof.

__________________

In his Report, IBP Investigating Commissioner Leland R. Villadolid Jr.

summarized the allegations of the complainant in this wise:

The Case and the Facts

x x x. In his Letter-Complaint, Complainant alleged, among

others, that Respondent in notarizing several documents on
different dates failed and/or refused to: a)make the proper notation
regarding the cedula or community tax certificate of the affiants; b)
enter the details of the notarized documents in the notarial register;
and c) make and execute the certification and enter his PTR and
IBP numbers in the documents he had notarized, all in violation of
the notarial provisions of the Revised Administrative Code.

Before us is a verified Complaint[1] filed by Jonar Santiago, an employee of

the Bureau of Jail Management and Penology (BJMP), for the disbarment of
Atty. Edison V. Rafanan. The Complaint was filed with the Commission on

Complainant likewise alleged that Respondent executed

an Affidavit in favor of his client and offered the same as evidence
in the case wherein he was actively representing his client. Finally,
Complainant alleges that on a certain date, Respondent
accompanied by several persons waited for Complainant after the
hearing and after confronting the latter disarmed him of his sidearm
and thereafter uttered insulting words and veiled threats.[6]

Bar Discipline (CBD) of the Integrated Bar of the Philippines (IBP) on

January 16, 2001. It charged Atty. Rafanan with deceit; malpractice or other
gross misconduct in office under Section 27 of Rule 138[2] of the Rules of
Court; and violation of Canons 1.01, 1.02 and 1.03[3], Canon 5[4], and

On March 23, 2001, pursuant to the January 19, 2001 Order of the CBD,
[7] Atty.

Rafanan

filed

his

verified

Answer.[8] He

admitted

having

administered the oath to the affiants whose Affidavits were attached to the

could testify on behalf of their clients on substantial matters, in cases where

verified Complaint. He believed, however, that the non-notation of their

[their] testimony is essential to the ends of justice. Complainant charged

Residence Certificates in the Affidavits and the Counter-affidavits was

respondents clients with attempted murder. Respondent averred that since

allowed. He opined that the notation of residence certificates applied only to

they were in his house when the alleged crime occurred, his testimony is

documents acknowledged by a notary public and was not mandatory for

very essential to the ends of justice. Respondent alleged that it was

affidavits related to cases pending before courts and other government

complainant who had threatened and harassed his clients after the hearing

offices. He pointed out that in the latter, the affidavits, which were sworn to

of their case by the provincial prosecutor on January 4, 2001. Respondent

before government prosecutors, did not have to indicate the residence

requested the assistance of the Cabanatuan City Police the following day,

certificates of the affiants. Neither did other notaries public in Nueva Ecija --

January 5, 2001, which was the next scheduled hearing, to avoid a repetition

some of whom were older practitioners -- indicate the affiants residence

of the incident and to allay the fears of his clients. In support of his

certificates on the documents they notarized, or have entries in their notarial

allegations, he submitted Certifications[10] from the Cabanatuan City Police

register for these documents.As to his alleged failure to comply with the

and the Joint Affidavit[11] of the two police officers who had assisted them.

certification required by Section 3 of Rule 112[9] of the Rules of Criminal

Lastly, he contended that the case had been initiated for no other purpose

Procedure, respondent explained that as counsel of the affiants, he had the

than to harass him, because he was the counsel of Barangay Captain

option to comply or not with the certification. To nullify the Affidavits, it was

Ernesto Ramos in the cases filed by the latter before the ombudsman and

complainant who was duty-bound to bring the said noncompliance to the

the BJMP against complainant. After receipt of respondents Answer, the

attention of the prosecutor conducting the preliminary investigation. As to his

CBD, through Commissioner Tyrone R. Cimafranca, set the case for hearing

alleged violation of Rule 12.08 of the CPR, respondent argued that lawyers

on June 5, 2001, at two oclock in the afternoon. Notices[12] of the hearing

were sent to the parties by registered mail. On the scheduled date and time

On September 27, 2003, the IBP Board of Governors issued Resolution No.

of the hearing, only complainant appeared.Respondent was unable to do so,

XVI-2003-172[19] approving and adopting the Investigating Commissioners
apparently because he had received the Notice only on June 8, 2001.
[13] The hearing was reset to July 3, 2001 at two oclock in the afternoon.

Report that respondent had violated specific requirements of the Notarial

On the same day, June 5, 2001, complainant filed his Reply[14] to the

Law on the execution of a certification, the entry of such certification in the

verified Answer of respondent. The latters Rejoinder was received by the

notarial register, and the indication of the affiants residence certificate. The

CBD

on

July

13,

2001.[15] It

also

received

complainants

Letter-

IBP

Board

of

Governors

found

his

excuse

for

the

violations

Request[16] to dispense with the hearings. Accordingly, it granted that

request in its Order[17] dated July 24, 2001, issued through Commissioner

unacceptable. Itmodified,

however,

the

recommendation[20] of

the

Cimafranca. It thereby directed the parties to submit their respective

investigating commissioner by increasing the fine to P3,000 with a

memoranda within fifteen days from receipt of the Order, after which the

warning that any repetition of the violation will be dealt with a heavier

case was to be deemed submitted for resolution. The CBD received

penalty. The other charges -- violation of Section 27 of Rule 138 of the Rules

complainants Memorandum[18] on September 26, 2001. Respondent did not

of Court; and Canons 1.01 to 1.03, 12.07 and 12.08 of the CPR -- were
file any.
dismissed for insufficiency of evidence.
The IBPs Recommendation

The Courts Ruling

We agree with the Resolution of the IBP Board of Governors.

Respondents Administrative Liability

Violation of the Notarial Law

notarized documents. Notaries public entering into their commissions are

presumed to be aware of these elementary requirements.

The Notarial Law is explicit on the obligations and duties of notaries

public. They are required to certify that the party to every document
acknowledged before them has presented the proper residence certificate

In Vda. de Rosales v. Ramos,[24] the Court explained the value

and meaning of notarization as follows:

(or exemption from the residence tax); and to enter its number, place of
issue and date as part of such certification.[21] They are also required to
maintain and keep a notarial register; to enter therein all instruments
notarized by them; and to give to each instrument executed, sworn to, or
acknowledged before [them] a number corresponding to the one in [their]

The importance attached to the act of notarization cannot

be overemphasized. Notarization is not an empty, meaningless,
routinary act. It is invested with substantive public interest, such
that only those who are qualified or authorized may act as notaries
public. Notarization converts a private document into a public
document thus making that document admissible in evidence
without further proof of its authenticity. A notarial document is by
law entitled to full faith and credit upon its face. Courts,
administrative agencies and the public at large must be able to rely
upon the acknowledgment executed by a notary public and
appended to a private instrument.

register [and to state therein] the page or pages of [their] register, on which
the same is recorded.[22] Failure to perform these duties would result in the
For this reason, notaries public should not take for granted the
revocation of their commission as notaries public.[23]
solemn duties pertaining to their office. Slipshod methods in their
These formalities are mandatory and cannot be simply neglected,
considering the degree of importance and evidentiary weight attached to

performance of the notarial act are never to be countenanced. They are

expected to exert utmost care in the performance of their duties,[25] which

with the basics of notarial procedure allegedly because others were doing

are dictated by public policy and are impressed with public interest.

so. Being swayed by the bad example of others is not an acceptable

justification for breaking the law. We note further that the documents

It is clear from the pleadings before us -- and respondent has

attached to the verified Complaint are the Joint Counter-Affidavit of
readily admitted -- that he violated the Notarial Law by failing to enter in the
respondents clients Ernesto Ramos and Rey Geronimo, as well as their
documents notations of the residence certificate, as well as the entry number
witnesses Affidavits relative to Criminal Case No. 69-2000 for attempted
and the pages of the notarial registry.
murder, filed

by complainants

brother

against

the

aforementioned

Respondent believes, however, that noncompliance with those

clients. These documents became the basis of the present Complaint. As

requirements is not mandatory for affidavits relative to cases pending before

correctly pointed out by the investigating commissioner, Section 3 of Rule

the courts and government agencies. He points to similar practices of older

112 of the Rules of Criminal Procedure expressly requires respondent as

notaries in Nueva Ecija.

notary -- in the absence of any fiscal, state prosecutor or government official

authorized to administer the oath -- to certify that he has personally

We cannot give credence to, much less honor, his claim. His belief
examined the affiants and that he is satisfied that they voluntarily executed
that the requirements do not apply to affidavits is patently irrelevant. No law
and understood their affidavits. Respondent failed to do so with respect to
dispenses with these formalities. Au contraire, the Notarial Law makes no
the subject Affidavits and Counter-Affidavits in the belief that -- as counsel
qualification or exception. It is appalling and inexcusable that he did away

for the affiants -- he was not required to comply with the certification

Notarial Law, the Rules of Criminal Procedure, and the importance of his

requirement. It must be emphasized that the primary duty of lawyers is to

office as a notary public.Nonetheless, we do not agree with complainants

obey the laws of the land and promote respect for the law and legal

plea to disbar respondent from the practice of law. The power to disbar must

processes.[26] They are expected to be in the forefront in the observance

be exercised with great caution.[29] Disbarment will be imposed as a penalty

and maintenance of the rule of law. This duty carries with it the obligation to

only in a clear case of misconduct that seriously affects the standing and the

be well-informed of the existing laws and to keep abreast with legal

character of the lawyer as an officer of the court and a member of the

developments, recent enactments and jurisprudence.[27] It is imperative that

bar. Where any lesser penalty can accomplish the end desired, disbarment

they be conversant with basic legal principles.Unless they faithfully comply

should not be decreed.[30] Considering the nature of the infraction and the

with such duty, they may not be able to discharge competently and diligently

absence of deceit on the part of respondent, we believe that the penalty

their obligations as members of the bar. Worse, they may become

recommended by the IBP Board of Governors is a sufficient disciplinary

susceptible to committing mistakes. Where notaries public are lawyers, a

measure in this case.

graver responsibility is placed upon them by reason of their solemn oath to

Lawyer as Witness for Client
obey the laws.[28] No custom or age-old practice provides sufficient excuse
or justification for their failure to adhere to the provisions of the law. In this
case, the excuse given by respondent exhibited his clear ignorance of the

Complainant further faults respondent for executing before

behind such rule is the difficulty posed upon lawyers by the task of

Prosecutor Leonardo Padolina an affidavit corroborating the defense of alibi

dissociating their relation to their clients as witnesses from that as

proffered by respondents clients, allegedly in violation of Rule 12.08 of the

advocates. Witnesses are expected to tell the facts as they recall them. In

CPR: A lawyer shall avoid testifying in behalf of his client.

contradistinction, advocates are partisans -- those who actively plead and

defend the cause of others. It is difficult to distinguish the fairness and

Rule 12.08 of Canon 12 of the CPR states:

Rule 12.08 A lawyer shall avoid testifying in behalf of his
client, except:

impartiality of a disinterested witness from the zeal of an advocate. The

question is one of propriety rather than of competency of the lawyers who

a)
on formal matters, such as the mailing,
authentication or custody of an instrument and the like;

testify for their clients.

Acting or appearing to act in the double capacity of lawyer and witness for
b)
on substantial matters, in cases where his
testimony is essential to the ends of justice, in which event
he must, during his testimony, entrust the trial of the case
to another counsel.

the client will provoke unkind criticism and leave many people to suspect the
truthfulness of the lawyer because they cannot believe the lawyer as
disinterested. The people will have a plausible reason for thinking, and if

Parenthetically, under the law, a lawyer is not disqualified from

their sympathies are against the lawyers client, they will have an opportunity,
being a witness,[31] except only in certain cases pertaining to privileged
not likely to be neglected, for charging, that as a witness he fortified it with
communication arising from an attorney-client relationship.[32]The reason

his own testimony. The testimony of the lawyer becomes doubted and is

doubts that may arise from the evidence as to their guilt; and to ensure that if

looked upon as partial and untruthful.[33]

they are convicted, such conviction is according to law.Having undertaken

the defense of the accused, respondent, as defense counsel, was thus

Thus, although the law does not forbid lawyers from being
expected to spare no effort to save his clients from a wrong conviction. He
witnesses and at the same time counsels for a cause, the preference is for
had the duty to present -- by all fair and honorable means -- every defense
them to refrain from testifying as witnesses, unless they absolutely have to;
and mitigating circumstance that the law permitted, to the end that his clients
and should they do so, to withdraw from active management of the case.
would not be deprived of life, liberty or property, except by due process of
[34]Notwithstanding this guideline and the existence of the Affidavit executed
law.[36]
by Atty. Rafanan in favor of his clients, we cannot hastily make him
administratively liable for the following reasons:

The Affidavit executed by Atty. Rafanan was clearly necessary for the
defense of his clients, since it pointed out the fact that on the alleged date

First, we consider it the duty of a lawyer to assert every remedy and

and time of the incident, his clients were at his residence and could not have
defense that is authorized by law for the benefit of the client, especially in a
possibly committed the crime charged against them. Notably, in his Affidavit,
criminal action in which the latters life and liberty are at stake.[35] It is the
complainant does not dispute the statements of respondent or suggest the
fundamental right of the accused to be afforded full opportunity to rebut the
falsity of its contents.Second, paragraph (b) of Rule 12.08 contemplates a
charges against them. They are entitled to suggest all those reasonable
situation in which lawyers give their testimonies during the trial. In this

instance, the Affidavit was submitted during the preliminary investigation

No Proof of Harassment

which, as such, was merely inquisitorial.[37] Not being a trial of the case on
the merits, a preliminary investigation has the oft-repeated purposes of
securing innocent persons against hasty, malicious and oppressive
prosecutions; protecting them from open and public accusations of crime
and from the trouble as well as expense and anxiety of a public trial; and
protecting the State from useless and expensive prosecutions.[38]The
investigation is advisedly called preliminary, as it is yet to be followed by the
trial proper.

Nonetheless, we deem it important to stress and remind respondent to

refrain from accepting employment in any matter in which he knows or has
reason to believe that he may be an essential witness for the prospective
client. Furthermore, in future cases in which his testimony may become
essential to serve the ends of justice, the canons of the profession require
him to withdraw from the active prosecution of these cases.

The charge that respondent harassed complainant and uttered

insulting words and veiled threats is not supported by evidence. Allegation is
never equivalent to proof, and a bare charge cannot be equated with liability.
[39] It is not the self-serving claim of complainant but the version of
respondent that is more credible, considering that the latters allegations are
corroborated by the Affidavits of the police officers and the Certifications of
the Cabanatuan City Police.

WHEREFORE, Atty. Edison V. Rafanan is found guilty of violating the

Notarial Law and Canon 5 of the Code of Professional Responsibility and is
herebyFINED P3,000 with a warning that similar infractions in the future will
be dealt with more severely.

SECOND DIVISION

[G.R. No. 120592. March 14, 1997]

TRADERS
ROYAL
BANK
EMPLOYEES
UNIONINDEPENDENT, petitioner, vs. NATIONAL LABOR RELATIONS
COMMISSION and EMMANUEL NOEL A. CRUZ, respondents.
DECISION
REGALADO, J.:
Petitioner Traders Royal Bank Employees Union and private
respondent Atty. Emmanuel Noel A. Cruz, head of the E.N.A. Cruz and
Associates law firm, entered into a retainer agreement on February 26, 1987
whereby the former obligated itself to pay the latter a monthly retainer fee
of P3,000.00 in consideration of the law firms undertaking to render the
services enumerated in their contract.[1] Parenthetically, said retainer
agreement was terminated by the union on April 4, 1990.[2]
During the existence of that agreement, petitioner union referred to
private respondent the claims of its members for holiday, mid-year and yearend bonuses against their employer, Traders Royal Bank (TRB). After the
appropriate complaint was filed by private respondent, the case was certified
by the Secretary of Labor to the National Labor Relations Commission
(NLRC) on March 24, 1987 and docketed as NLRC-NCR Certified Case No.
0466.[3]

On September 2, 1988, the NLRC rendered a decision in the foregoing

case in favor of the employees, awarding them holiday pay differential, midyear bonus differential, and year-end bonus differential. [4] The NLRC, acting
on a motion for the issuance of a writ of execution filed by private
respondent as counsel for petitioner union, raffled the case to Labor Arbiter
Oswald Lorenzo.[5]
However, pending the hearing of the application for the writ of
execution, TRB challenged the decision of the NLRC before the Supreme
Court. The Court, in its decision promulgated onAugust 30, 1990,[6] modified
the decision of the NLRC by deleting the award of mid-year and year-end
bonus differentials while affirming the award of holiday pay differential.[7]
The bank voluntarily complied with such final judgment and determined
the holiday pay differential to be in the amount of P175,794.32. Petitioner
never contested the amount thus found by TRB. [8] The latter duly paid its
concerned employees their respective entitlement in said sum through their
payroll.[9]
After private respondent received the above decision of the Supreme
Court on September 18, 1990,[10] he notified the petitioner union, the TRB
management and the NLRC of his right to exercise and enforce his attorneys
lien over the award of holiday pay differential through a letter dated October
8, 1990.[11]
Thereafter, on July 2, 1991, private respondent filed a motion before
Labor Arbiter Lorenzo for the determination of his attorneys fees, praying
that ten percent (10%) of the total award for holiday pay differential
computed by TRB at P175,794.32, or the amount of P17,579.43, be
declared as his attorneys fees, and that petitioner union be ordered to pay
and remit said amount to him.[12]
The TRB management manifested before the labor arbiter that they did
not wish to oppose or comment on private respondents motion as the claim
was directed against the union,[13]while petitioner union filed a comment and
opposition to said motion on July 15, 1991.[14] After considering the position
of the parties, the labor arbiter issued an order [15] on November 26, 1991
granting the motion of private respondent, as follows:
WHEREFORE, premises considered, it is hereby ordered that the
TRADERS ROYAL BANK EMPLOYEES UNION with offices at Kanlaon
Towers, Roxas Boulevard is hereby ordered (sic) to pay without delay the
attorneys fees due the movant law firm, E.N.A. CRUZ and ASSOCIATES the
amount of P17,574.43 or ten (10%) per cent of the P175,794.32 awarded by
the Supreme Court to the members of the former.

This constrained petitioner to file an appeal with the NLRC on December 27,
1991, seeking a reversal of that order.[16]
On October 19, 1994, the First Division of the NLRC promulgated a
resolution affirming the order of the labor arbiter.[17] The motion for
reconsideration filed by petitioner was denied by the NLRC in a resolution
dated May 23, 1995,[18] hence the petition at bar.
Petitioner maintains that the NLRC committed grave abuse of
discretion amounting to lack of jurisdiction in upholding the award of
attorneys fees in the amount of P17,574.43, or ten percent (10%) of
the P175,794.32 granted as holiday pay differential to its members, in
violation of the retainer agreement; and that the challenged resolution of the
NLRC is null and void,[19] for the reasons hereunder stated.
Although petitioner union concedes that the NLRC has jurisdiction to
decide claims for attorneys fees, it contends that the award for attorneys
fees should have been incorporated in the main case and not after the
Supreme Court had already reviewed and passed upon the decision of the
NLRC. Since the claim for attorneys fees by private respondent was neither
taken up nor approved by the Supreme Court, no attorneys fees should have
been allowed by the NLRC.
Thus, petitioner posits that the NLRC acted without jurisdiction in
making the award of attorneys fees, as said act constituted a modification of
a final and executory judgment of the Supreme Court which did not award
attorneys fees. It then cited decisions of the Court declaring that a decision
which has become final and executory can no longer be altered or modified
even by the court which rendered the same.
On the other hand, private respondent maintains that his motion to
determine attorneys fees was just an incident of the main case where
petitioner was awarded its money claims. The grant of attorneys fees was
the consequence of his exercise of his attorneys lien. Such lien resulted from
and corresponds to the services he rendered in the action wherein the
favorable judgment was obtained. To include the award of the attorneys fees
in the main case presupposes that the fees will be paid by TRB to the
adverse party. All that the non-inclusion of attorneys fees in the award
means is that the Supreme Court did not order TRB to pay the opposing
party attorneys fees in the concept of damages. He is not therefore
precluded from filing his motion to have his own professional fees
adjudicated.
In view of the substance of the arguments submitted by petitioner and
private respondent on this score, it appears necessary to explain and
consequently clarify the nature of the attorneys fees subject of this petition,

in order to dissipate the apparent confusion between and the conflicting

views of the parties.
There are two commonly accepted concepts of attorneys fees, the socalled ordinary and extraordinary.[20] In its ordinary concept, an attorneys fee
is the reasonable compensation paid to a lawyer by his client for the legal
services he has rendered to the latter. The basis of this compensation is the
fact of his employment by and his agreement with the client.
In its extraordinary concept, an attorneys fee is an indemnity for
damages ordered by the court to be paid by the losing party in a
litigation. The basis of this is any of the cases provided by law where such
award can be made, such as those authorized in Article 2208, Civil Code,
and is payable not to the lawyer but to the client, unless they have agreed
that the award shall pertain to the lawyer as additional compensation or as
part thereof.
It is the first type of attorneys fees which private respondent demanded
before the labor arbiter. Also, the present controversy stems from petitioners
apparent misperception that the NLRC has jurisdiction over claims for
attorneys fees only before its judgment is reviewed and ruled upon by the
Supreme Court, and that thereafter the former may no longer entertain
claims for attorneys fees.
It will be noted that no claim for attorneys fees was filed by private
respondent before the NLRC when it acted on the money claims of
petitioner, nor before the Supreme Court when it reviewed the decision of
the NLRC. It was only after the High Tribunal modified the judgment of the
NLRC awarding the differentials that private respondent filed his claim
before the NLRC for a percentage thereof as attorneys fees.
It would obviously have been impossible, if not improper, for the NLRC
in the first instance and for the Supreme Court thereafter to make an award
for attorneys fees when no claim therefor was pending before them. Courts
generally rule only on issues and claims presented to them for
adjudication. Accordingly, when the labor arbiter ordered the payment of
attorneys fees, he did not in any way modify the judgment of the Supreme
Court.
As an adjunctive episode of the action for the recovery of bonus
differentials in NLRC-NCR Certified Case No. 0466, private respondents
present claim for attorneys fees may be filed before the NLRC even though
or, better stated, especially after its earlier decision had been reviewed and
partially affirmed. It is well settled that a claim for attorneys fees may be
asserted either in the very action in which the services of a lawyer had been
rendered or in a separate action.[21]

With respect to the first situation, the remedy for recovering attorneys
fees as an incident of the main action may be availed of only when
something is due to the client.[22] Attorneys fees cannot be determined until
after the main litigation has been decided and the subject of the recovery is
at the disposition of the court. The issue over attorneys fees only arises
when something has been recovered from which the fee is to be paid.[23]
While a claim for attorneys fees may be filed before the judgment is
rendered, the determination as to the propriety of the fees or as to the
amount thereof will have to be held in abeyance until the main case from
which the lawyers claim for attorneys fees may arise has become
final. Otherwise, the determination to be made by the courts will be
premature.[24] Of course, a petition for attorneys fees may be filed before the
judgment in favor of the client is satisfied or the proceeds thereof delivered
to the client.[25]
It is apparent from the foregoing discussion that a lawyer has two
options as to when to file his claim for professional fees. Hence, private
respondent was well within his rights when he made his claim and waited for
the finality of the judgment for holiday pay differential, instead of filing it
ahead of the awards complete resolution. To declare that a lawyer may file a
claim for fees in the same action only before the judgment is reviewed by a
higher tribunal would deprive him of his aforestated options and render
ineffective the foregoing pronouncements of this Court.
Assailing the rulings of the labor arbiter and the NLRC, petitioner union
insists that it is not guilty of unjust enrichment because all attorneys fees due
to private respondent were covered by the retainer fee of P3,000.00 which it
has been regularly paying to private respondent under their retainer
agreement. To be entitled to the additional attorneys fees as provided in Part
D (Special Billings) of the agreement, it avers that there must be a separate
mutual agreement between the union and the law firm prior to the
performance of the additional services by the latter. Since there was no
agreement as to the payment of the additional attorneys fees, then it is
considered waived.
En contra, private respondent contends that a retainer fee is not the
attorneys fees contemplated for and commensurate to the services he
rendered to petitioner. He asserts that although there was no express
agreement as to the amount of his fees for services rendered in the case for
recovery of differential pay, Article 111 of the Labor Code supplants this
omission by providing for an award of ten percent (10%) of a money
judgment in a labor case as attorneys fees.
It is elementary that an attorney is entitled to have and receive a just
and reasonable compensation for services performed at the special instance

and request of his client. As long as the lawyer was in good faith and
honestly trying to represent and serve the interests of the client, he should
have a reasonable compensation for such services. [26] It will thus be
appropriate, at this juncture, to determine if private respondent is entitled to
an additional remuneration under the retainer agreement [27] entered into by
him and petitioner.
The parties subscribed therein to the following stipulations:
xxx
The Law Firm shall handle cases and extend legal services under the
parameters of the following terms and conditions:
A. GENERAL SERVICES
1. Assurance that an Associate of the Law Firm shall be
designated and be available on a day-to-day basis
depending on the Unions needs;
2. Legal consultation, advice and render opinion on any actual
and/or anticipatory situation confronting any matter within
the clients normal course of business;
3. Proper documentation and notarization of any or all
transactions entered into by the Union in its day-to-day
course of business;
4. Review all contracts, deeds, agreements or any other legal
document to which the union is a party signatory thereto
but prepared or caused to be prepared by any other third
party;
5. Represent the Union in any case wherein the Union is a
party litigant in any court of law or quasi-judicial body
subject to certain fees as qualified hereinafter;
6. Lia(i)se with and/or follow-up any pending application or
any papers with any government agency and/or any
private institution which is directly related to any legal
matter referred to the Law Firm.
B. SPECIAL LEGAL SERVICES
1. Documentation of any contract and other legal
instrument/documents arising and/or required by your

Union which do not fall under the category of its ordinary

course of business activity but requires a special,
exhaustive or detailed study and preparation;
2. Conduct or undertake researches and/or studies on special
projects of the Union;
3. Render active and actual participation or assistance in
conference table negotiations with TRB management or
any other third person(s), juridical or natural, wherein the
presence of counsel is not for mere consultation except
CBA negotiations which shall be subject to a specific
agreement (pursuant to PD 1391 and in relation to BP 130
& 227);
4. Preparation of Position Paper(s), Memoranda or any other
pleading for and in behalf of the Union;
5. Prosecution or defense of any case instituted by or against
the Union; and,
6. Represent any member of the Union in any proceeding
provided that the particular member must give his/her
assent and that prior consent be granted by the principal
officers. Further, the member must conform to the rules
and policies of the Law Firm.
C. FEE STRUCTURE
In consideration of our commitment to render the services enumerated
above when required or necessary, your Union shall pay a monthly retainer
fee of THREE THOUSAND PESOS (PHP 3,000.00), payable in advance on
or before the fifth day of every month.
An Appearance Fee which shall be negotiable on a case-to-case basis.
Any and all Attorneys Fees collected from the adverse party by virtue of a
successful litigation shall belong exclusively to the Law Firm.
It is further understood that the foregoing shall be without prejudice to our
claim for reimbursement of all out-of-pocket expenses covering filing fees,
transportation, publication costs, expenses covering reproduction or
authentication of documents related to any matter referred to the Law Firm
or that which redound to the benefit of the Union.

D. SPECIAL BILLINGS
In the event that the Union avails of the services duly enumerated in Title B,
the Union shall pay the Law Firm an amount mutually agreed upon PRIOR
to the performance of such services. The sum agreed upon shall be based
on actual time and effort spent by the counsel in relation to the importance
and magnitude of the matter referred to by the Union. However, charges
may be WAIVED by the Law Firm if it finds that time and efforts expended on
the particular services are inconsequential but such right of waiver is duly
reserved for the Law Firm.
xxx
The provisions of the above contract are clear and need no further
interpretation; all that is required to be done in the instant controversy is its
application. The P3,000.00 which petitioner pays monthly to private
respondent does not cover the services the latter actually rendered before
the labor arbiter and the NLRC in behalf of the former. As stipulated in Part
C of the agreement, the monthly fee is intended merely as a consideration
for the law firms commitment to render the services enumerated in Part A
(General Services) and Part B (Special Legal Services) of the retainer
agreement.
The difference between a compensation for a commitment to render
legal services and a remuneration for legal services actually rendered can
better be appreciated with a discussion of the two kinds of retainer fees a
client may pay his lawyer. These are a general retainer, or a retaining fee,
and a special retainer.[28]
A general retainer, or retaining fee, is the fee paid to a lawyer to secure
his future services as general counsel for any ordinary legal problem that
may arise in the routinary business of the client and referred to him for legal
action. The future services of the lawyer are secured and committed to the
retaining client. For this, the client pays the lawyer a fixed retainer fee which
could be monthly or otherwise, depending upon their arrangement. The fees
are paid whether or not there are cases referred to the lawyer. The reason
for the remuneration is that the lawyer is deprived of the opportunity of
rendering services for a fee to the opposing party or other parties. In fine, it
is a compensation for lost opportunities.
A special retainer is a fee for a specific case handled or special service
rendered by the lawyer for a client. A client may have several cases
demanding special or individual attention. If for every case there is a
separate and independent contract for attorneys fees, each fee is
considered a special retainer.

As to the first kind of fee, the Court has had the occasion to expound
on its concept in Hilado vs. David[29] in this wise:
There is in legal practice what is called a retaining fee, the purpose of which
stems from the realization that the attorney is disabled from acting as
counsel for the other side after he has given professional advice to the
opposite party, even if he should decline to perform the contemplated
services on behalf of the latter. It is to prevent undue hardship on the
attorney resulting from the rigid observance of the rule that a separate and
independent fee for consultation and advice was conceived and
authorized. A retaining fee is a preliminary fee given to an attorney or
counsel to insure and secure his future services, and induce him to act for
the client. It is intended to remunerate counsel for being deprived, by being
retained by one party, of the opportunity of rendering services to the other
and of receiving pay from him, andthe payment of such fee, in the absence
of an express understanding to the contrary, is neither made nor received in
payment of the services contemplated; its payment has no relation to the
obligation of the client to pay his attorney for the services for which he has
retained him to perform. (Emphasis supplied).
Evidently, the P3,000.00 monthly fee provided in the retainer
agreement between the union and the law firm refers to a general retainer,
or a retaining fee, as said monthly fee covers only the law firms pledge, or as
expressly stated therein, its commitment to render the legal services
enumerated. The fee is not payment for private respondents execution or
performance of the services listed in the contract, subject to some particular
qualifications or permutations stated there.
Generally speaking, where the employment of an attorney is under an
express valid contract fixing the compensation for the attorney, such contract
is conclusive as to the amount of compensation. [30] We cannot, however,
apply the foregoing rule in the instant petition and treat the fixed fee
of P3,000.00 as full and sufficient consideration for private respondents
services, as petitioner would have it.
We have already shown that the P3,000.00 is independent and
different from the compensation which private respondent should receive in
payment for his services. While petitioner and private respondent were able
to fix a fee for the latters promise to extend services, they were not able to
come into agreement as to the law firms actual performance of services in
favor of the union. Hence, the retainer agreement cannot control the
measure of remuneration for private respondents services.
We, therefore, cannot favorably consider the suggestion of petitioner
that private respondent had already waived his right to charge additional
fees because of their failure to come to an agreement as to its payment.

Firstly, there is no showing that private respondent unequivocally opted

to waive the additional charges in consonance with Part D of the
agreement. Secondly, the prompt actions taken by private respondent, i.e.,
serving notice of charging lien and filing of motion to determine attorneys
fees, belie any intention on his part to renounce his right to compensation for
prosecuting the labor case instituted by the union. And, lastly, to adopt such
theory of petitioner may frustrate private respondents right to attorneys fees,
as the former may simply and unreasonably refuse to enter into any special
agreement with the latter and conveniently claim later that the law firm had
relinquished its right because of the absence of the same.
The fact that petitioner and private respondent failed to reach a
meeting of the minds with regard to the payment of professional fees for
special services will not absolve the former of civil liability for the
corresponding remuneration therefor in favor of the latter.
Obligations do not emanate only from contracts.[31] One of the sources
of extra-contractual obligations found in our Civil Code is the quasi-contract
premised on the Roman maxim thatnemo cum alterius detrimento locupletari
protest. As embodied in our law,[32] certain lawful, voluntary and unilateral
acts give rise to the juridical relation of quasi-contract to the end that no one
shall be unjustly enriched or benefited at the expense of another.
A quasi-contract between the parties in the case at bar arose from
private respondents lawful, voluntary and unilateral prosecution of petitioners
cause without awaiting the latters consent and approval. Petitioner cannot
deny that it did benefit from private respondents efforts as the law firm was
able to obtain an award of holiday pay differential in favor of the union. It
cannot even hide behind the cloak of the monthly retainer of P3,000.00 paid
to private respondent because, as demonstrated earlier, private respondents
actual rendition of legal services is not compensable merely by said amount.
Private respondent is entitled to an additional remuneration for
pursuing legal action in the interest of petitioner before the labor arbiter and
the NLRC, on top of the P3,000.00 retainer fee he received monthly from
petitioner. The law firms services are decidedly worth more than such basic
fee in the retainer agreement. Thus, in Part C thereof on Fee Structure, it is
even provided that all attorneys fees collected from the adverse party by
virtue of a successful litigation shall belong exclusively to private respondent,
aside from petitioners liability for appearance fees and reimbursement of the
items of costs and expenses enumerated therein.
A quasi-contract is based on the presumed will or intent of the obligor
dictated by equity and by the principles of absolute justice. Some of these
principles are: (1) It is presumed that a person agrees to that which will
benefit him; (2) Nobody wants to enrich himself unjustly at the expense of

another; and (3) We must do unto others what we want them to do unto us
under the same circumstances.[33]
As early as 1903, we allowed the payment of reasonable professional
fees to an interpreter, notwithstanding the lack of understanding with his
client as to his remuneration, on the basis of quasi-contract. [34] Hence, it is
not necessary that the parties agree on a definite fee for the special services
rendered by private respondent in order that petitioner may be obligated to
pay compensation to the former. Equity and fair play dictate that petitioner
should pay the same after it accepted, availed itself of, and benefited from
private respondents services.
We are not unaware of the old ruling that a person who had no
knowledge of, nor consented to, or protested against the lawyers
representation may not be held liable for attorneys fees even though he
benefited from the lawyers services.[35] But this doctrine may not be applied
in the present case as petitioner did not object to private respondents
appearance before the NLRC in the case for differentials.
Viewed from another aspect, since it is claimed that petitioner obtained
respondents legal services and assistance regarding its claims against the
bank, only they did not enter into a special contract regarding the
compensation therefor, there is at least the innominate contract of facio ut
des (I do that you may give).[36] This rule of law, likewise founded on the
principle against unjust enrichment, would also warrant payment for the
services of private respondent which proved beneficial to petitioners
members.
In any case, whether there is an agreement or not, the courts can fix a
reasonable compensation which lawyers should receive for their
professional services.[37] However, the value of private respondents legal
services should not be established on the basis of Article 111 of the Labor
Code alone. Said article provides:
ART. 111. Attorneys fees. - (a) In cases of unlawful withholding of wages the
culpable party may be assessed attorneys fees equivalent to ten percent of
the amount of the wages recovered.
xxx
The implementing provision[38] of the foregoing article further states:
Sec. 11. Attorneys fees. - Attorneys fees in any judicial or administrative
proceedings for the recovery of wages shall not exceed 10% of the amount
awarded. The fees may be deducted from the total amount due the winning
party.

In the first place, the fees mentioned here are the extraordinary
attorneys fees recoverable as indemnity for damages sustained by and
payable to the prevailing part. In the second place, the ten percent (10%)
attorneys fees provided for in Article 111 of the Labor Code and Section 11,
Rule VIII, Book III of the Implementing Rules is the maximum of the award
that may thus be granted.[39] Article 111 thus fixes only the limit on the
amount of attorneys fees the victorious party may recover in any judicial or
administrative proceedings and it does not even prevent the NLRC from
fixing an amount lower than the ten percent (10%) ceiling prescribed by the
article when circumstances warrant it.[40]
The measure of compensation for private respondents services as
against his client should properly be addressed by the rule of quantum
meruit long adopted in this jurisdiction.Quantum meruit, meaning as much as
he deserves, is used as the basis for determining the lawyers professional
fees in the absence of a contract,[41] but recoverable by him from his client.
Where a lawyer is employed without a price for his services being
agreed upon, the courts shall fix the amount on quantum meruit basis. In
such a case, he would be entitled to receive what he merits for his services.
[42]

It is essential for the proper operation of the principle that there is an

acceptance of the benefits by one sought to be charged for the services
rendered under circumstances as reasonably to notify him that the lawyer
performing the task was expecting to be paid compensation therefor. The
doctrine of quantum meruit is a device to prevent undue enrichment based
on the equitable postulate that it is unjust for a person to retain benefit
without paying for it.[43]
Over the years and through numerous decisions, this Court has laid
down guidelines in ascertaining the real worth of a lawyers services. These
factors are now codified in Rule 20.01, Canon 20 of the Code of Professional
Responsibility and should be considered in fixing a reasonable
compensation for services rendered by a lawyer on the basis of quantum
meruit.These are: (a) the time spent and the extent of services rendered or
required; (b) the novelty and difficulty of the questions involved; (c) the
importance of the subject matter; (d) the skill demanded; (e) the probability
of losing other employment as a result of acceptance of the proffered case;
(f) the customary charges for similar services and the schedule of fees of the
IBP chapter to which the lawyer belongs; (g) the amount involved in the
controversy and the benefits resulting to the client from the services; (h) the
contingency or certainty of compensation; (i) the character of the
employment, whether occasional or established; and (j) the professional
standing of the lawyer.

Here, then, is the flaw we find in the award for attorneys fees in favor of
private respondent. Instead of adopting the above guidelines, the labor
arbiter forthwith but erroneously set the amount of attorneys fees on the
basis of Article 111 of the Labor Code. He completely relied on the operation
of Article 111 when he fixed the amount of attorneys fees at P17,574.43.
[44]
Observe the conclusion stated in his order.[45]
xxx
FIRST. Art. 111 of the Labor Code, as amended, clearly declares movants
right to a ten (10%) per cent of the award due its client. In addition, this right
to ten (10%) per cent attorneys fees is supplemented bySec. 111, Rule VIII,
Book III of the Omnibus Rules Implementing the Labor Code, as amended.
xxx
As already stated, Article 111 of the Labor Code regulates the amount
recoverable as attorneys fees in the nature of damages sustained by and
awarded to the prevailing party. It may not be used therefore, as the lone
standard in fixing the exact amount payable to the lawyer by his client for the
legal services he rendered. Also, while it limits the maximum allowable
amount of attorneys fees, it does not direct the instantaneous and automatic
award of attorneys fees in such maximum limit.
It, therefore, behooves the adjudicator in questions and circumstances
similar to those in the case at bar, involving a conflict between lawyer and
client, to observe the above guidelines in cases calling for the operation of
the principles of quasi-contract and quantum meruit, and to conduct a
hearing for the proper determination of attorneys fees. The criteria found in
the Code of Professional Responsibility are to be considered, and not
disregarded, in assessing the proper amount. Here, the records do not
reveal that the parties were duly heard by the labor arbiter on the matter and
for the resolution of private respondents fees.
It is axiomatic that the reasonableness of attorneys fees is a question
of fact.[46] Ordinarily, therefore, we would have remanded this case for further
reception of evidence as to the extent and value of the services rendered by
private respondent to petitioner. However, so as not to needlessly prolong
the resolution of a comparatively simple controversy, we deem it just and
equitable to fix in the present recourse a reasonable amount of attorneys
fees in favor of private respondent. For that purpose, we have duly taken
into account the accepted guidelines therefor and so much of the pertinent
data as are extant in the records of this case which are assistive in that
regard. On such premises and in the exercise of our sound discretion, we
hold that the amount of P10,000.00 is a reasonable and fair compensation

for the legal services rendered by private respondent to petitioner before the
labor arbiter and the NLRC.
WHEREFORE, the impugned resolution of respondent National Labor
Relations Commission affirming the order of the labor arbiter is MODIFIED,
and petitioner is hereby ORDERED to pay the amount of TEN THOUSAND
PESOS (P10,000.00) as attorneys fees to private respondent for the latters
legal services rendered to the former.
SO ORDERED.

Republic
SUPREME
Manila

of

the

Philippines
COURT

SECOND DIVISION

G.R. No. 118746 September 7, 1995

ATTY.
WILFREDO
TAGANAS, petitioner,
vs.
NATIONAL LABOR RELATIONS COMMISSION, MELCHOR ESCULTURA,
ET AL., respondents.
RESOLUTION

FRANCISCO, J.:
Petitioner Atty. Wilfredo E. Taganas represented herein private respondents
in a labor suit for illegal dismissal, underpayment and non-payment of
wages, thirteenth-month pay, attorney's fees and damages conditioned upon
a contingent fee arrangement granting the equivalent of fifty percent of the
judgment award plus three hundred pesos appearance fee per
hearing. 1 The Labor Arbiter ruled in favor of private respondents and
ordered Ultra Clean Services (Ultra) and the Philippine Tuberculosis Society,
Inc., (PTSI) respondents therein, jointly and severally to reinstate herein
private respondents with full backwages, to pay wage differentials,
emergency cost of living allowance, thirteenth-month pay and attorney's fee,
but disallowed the claim for damages for lack of basis. 2 This decision was
appealed by Ultra and PTSI to the National Labor Relations Commission
(NLRC), and subsequently by PTSI to the Court but to no avail. During the
execution stage of the decision, petitioner moved to enforce his attorney's
charging lien. 3 Private respondents, aggrieved for receiving a reduced
award due to the attorney's charging lien, contested the validity of the
contingent fee arrangement they have with petitioner, albeit four of the
fourteen private respondents have expressed their conformity thereto. 4
Finding the arrangement excessive, the Labor Arbiter ordered the reduction
of petitioner's contingent fee from fifty percent of the judgment award to ten
percent, except for the four private respondents who earlier expressed their
conformity. 5 Petitioner appealed to NLRC which affirmed with modification
the Labor Arbiter's order by ruling that the ten percent contingent fee should
apply also to the four respondents even if they earlier agreed to pay a higher
percentage. 6Petitioner's motion for reconsideration was denied, hence this
petition for certiorari.
The sole issue in this petition is whether or not the reduction of petitioner's
contingent fee is warranted. Petitioner argues that respondent NLRC failed
to apply the pertinent laws and jurisprudence on the factors to be considered
in determining whether or not the stipulated amount of petitioner's contingent
fee is fair and reasonable. Moreover, he contends that the invalidation of the
contingent fee agreement between petitioner and his clients was without any
legal justification especially with respect to the four clients who manifested
their conformity thereto. We are not persuaded.
A contingent fee arrangement is an agreement laid down in an express
contract between a lawyer and a client in which the lawyer's professional
fee, usually a fixed percentage of what may be recovered in the action is
made to depend upon the success of the litigation. 7 This arrangement is

valid in this jurisdiction. 8 It is, however, under the supervision and scrutiny of
the court to protect clients from unjust charges. 9 Section 13 of the Canons of
Professional Ethics states that "[a] contract for a contingent fee, where
sanctioned by law, should be reasonable under all the circumstances of the
case including the risk and uncertainty of the compensation, but should
always be subject to the supervision of a court, as to its reasonableness".
Likewise, Rule 138, Section 24 of the Rules of Court provides:
Sec. 24. Compensation of attorneys; agreement as to
fees. An attorney shall be entitled to have and recover
from his client no more than a reasonable compensation
for his services, with a view to the importance of the
subject-matter of the controversy, the extent of the
services rendered, and the professional standing of the
attorney. No court shall be bound by the opinion of
attorneys as expert witnesses as to the proper
compensation but may disregard such testimony and base
its conclusion on its own professional knowledge. A written
contract for services shall control the amount to be paid
therefor unless found by the court to be unconscionable or
unreasonable.
When it comes, therefore, to the validity of contingent fees, in large
measure it depends on the reasonableness of the stipulated fees
under the circumstances of each case. The reduction of
unreasonable attorney's fees is within the regulatory powers of the
courts. 10
We agree with the NLRC's assessment that fifty percent of the judgment
award as attorney's fees is excessive and unreasonable. The financial
capacity and economic status of the client have to be taken into account in
fixing the reasonableness of the fee. 11 Noting that petitioner's clients were
lowly janitors who receive miniscule salaries and that they were precisely
represented by petitioner in the labor dispute for reinstatement and claim for
backwages, wage differentials, emergency cost of living allowance,
thirteenth-month pay and attorney's fees to acquire what they have not been
receiving under the law and to alleviate their living condition, the reduction of
petitioner's contingent fee is proper. Labor cases, it should be stressed, call
for compassionate justice.
Furthermore, petitioner's contingent fee falls within the purview of Article 111
of the Labor Code. This article fixes the limit on the amount of attorney's fees
which a lawyer, like petitioner, may recover in any judicial or administrative

proceedings since the labor suit where he represented private respondents

asked for the claim and recovery of wages. In fact, We are not even
precluded from fixing a lower amount than the ten percent ceiling prescribed
by the article when circumstances warrant it. 12 Nonetheless, considering the
circumstances and the able handling of the case, petitioner's fee need not
be further reduced.
The manifestation of petitioner's four clients indicating their conformity with
the contingent fee contract did not make the agreement valid. The
contingent fee contract being unreasonable and unconscionable the same
was correctly disallowed by public respondent NLRC even with respect to
the four private respondents who agreed to pay higher percentage.
Petitioner is reminded that as a lawyer he is primarily an officer of the court
charged with the duty of assisting the court in administering impartial justice
between the parties. When he takes his oath, he submits himself to the
authority of the court and subjects his professional fees to judicial control. 13
WHEREFORE, finding no grave abuse of discretion the assailed NLRC
decision is hereby affirmed in toto.

EN BANC

RE: 2003 BAR EXAMINATIONS B.M. No. 1222

x ---------------------------------------- x
ATTY. DANILO DE GUZMAN,
Petitioner, Present:
Puno, C.J.,
Quisumbing,*
Ynares-Santiago,
Carpio,
Austria-Martinez,
Corona,
Carpio Morales,
Tinga,

ChicoNazario,
Velasco, Jr.,
Nachura,
Leonardo-De
Castro,
Brion,
Peralta, and
Bersamin, JJ
.
Promulgated:
April 24, 2009
x ---------------------------------------------------------------------------------------- x

(1) DISBAR Atty. DANILO DE GUZMAN from the practice

of law effective upon his receipt of this RESOLUTION;
xxxx

The subject of the Resolution is the leakage of questions in

Mercantile Law during the 2003 Bar Examinations. Petitioner at that time
was employed as an assistant lawyer in the law firm of Balgos & Perez, one
of whose partners, Marcial Balgos, was the examiner for Mercantile Law
during the said bar examinations. The Court had adopted the findings of the

RESOLUTION

Investigating Committee, which identified petitioner as the person who had

YNARES-SANTIAGO, J.:

downloaded the test questions from the computer of Balgos and faxed them
to other persons.

This treats the Petition for Judicial Clemency and Compassion dated
November 10, 2008 filed by petitioner Danilo de Guzman. He prays that this

The Office of the Bar Confidant (OBC) has favorably recommended

Honorable Court in the exercise of equity and compassion, grant petitioners

the reinstatement of petitioner in the Philippine Bar. In a Report dated

plea for judicial clemency, and thereupon, order his reinstatement as a

January 6, 2009, the OBC rendered its assessment of the petition, the

member in good standing of the Philippine Bar.[1]

relevant portions of which we quote hereunder:

To recall, on February 4, 2004, the Court promulgated a Resolution, in B.M.

No. 1222, the dispositive portion of which reads in part:
WHEREFORE, the Court, acting on the recommendations
of the Investigating Committee, hereby resolves to

Petitioner narrated that he had labored to become a

lawyer to fulfill his fathers childhood dream to become one. This
task was not particularly easy for him and his family but he willed to
endure the same in order to pay tribute to his parents.
Petitioner added that even at a very young age, he already
imposed upon himself the duty of rendering service to his
fellowmen. At 19 years, he started his exposure to public service
when he was elected Chairman of the Sangguniang Kabataan (SK)

of Barangay Tuktukan, Taguig City. During this time, he initiated

several projects benefiting the youth in their barangay.

the next five (5) years, petitioner concentrated mainly on rendering

public service.

Thereafter, petitioner focused on his studies, taking up

Bachelor of Arts in Political Science and eventually pursuing
Bachelor of Laws. In his second year in law school, he was elected
as the President of the Student Council of the Institute of Law of the
Far Eastern University (FEU). Here, he spearheaded various
activities including the conduct of seminars for law students as well
as the holding of bar operations for bar examinees.

Petitioner humbly acknowledged the damaging impact of

his act which unfortunately, compromised the integrity of the bar
examinations. As could be borne from the records of the
investigation, he cooperated fully in the investigation conducted and
took personal responsibility for his actions. Also, he has offered his
sincerest apologies to Atty. Balgos, to the Court as well as to all the
2003 bar examinees for the unforeseen and unintended effects of
his actions.

Despite his many extra-curricular activities as a youth and

student leader, petitioner still managed to excel in his studies. Thus,
he was conferred an Academic Excellence Award upon his
graduation in Bachelor of Laws.
Upon admission to the bar in April 1999, petitioner
immediately entered government service as a Legal Officer
assigned at the Sangguniang Bayan of Taguig. Simultaneously, he
also rendered free legal services to less fortunate residents
of Taguig City who were then in need of legal assistance.

Petitioner averred that he has since learned from his

mistakes and has taken the said humbling experience to make him
a better person.
Meanwhile, as part of his Petition, petitioner submitted the
following testimonials and endorsements of various individuals and
entities all attesting to his good moral character:
1)

Resolution No. 101, Series of 2007,

Resolution Expressing Full Support to Danilo G.
De Guzman in his Application for Judicial
Clemency, Endorsing his Competence and
Fitness to be Reinstated as a Member of the
Philippine Bar and for Other Purposes dated 4
June 2007 of the Sangguniang Panlungsod, City
of Taguig;

2)

Isang Bukas na Liham na Naglalayong

Iparating sa Kataas-Taasang Hukuman ang
Buong Suporta ng Pamunuan at mga Kasapi ng
Southeast
Peoples
Village
Homeowners
Association, Inc. (SEPHVOA) kay Danilo G. De
Guzman sa Kanyang Petisyong Magawaran ng
Kapatawaran at ang Boluntaryong Pag-susulong
sa Kanyang Kakayahan Upang Maibalik sa
Kanya ang mga Pribilehiyo ng Isang Abogado
dated 1 June 2007 of the Southeast Peoples
Village
Homeowners
Association,
Inc.
(SEPHVOA), Ibayo-Tipas, City of Taguig;

In March 2000, petitioner was hired as one of the

Associate Lawyers at the Balgos and Perez Law Offices. It was
during his stay with this firm when his craft as a lawyer was
polished and developed. Despite having entered private practice,
he continued to render free legal services to his fellow Taguigeos.
Then in February 2004, by a sudden twist of fate,
petitioners flourishing career was cut short as he was stripped of
his license to practice law for his alleged involvement in the leakage
in the 2003 Bar Examinations.
Devastated, petitioner then practically locked himself
inside his house to avoid the rather unavoidable consequences of
his disbarment.
On March 2004, however, petitioner was given a new
lease in life when he was taken as a consultant by the City
Government of Taguig. Later, he was designated as a member of
the Secretariat of the Peoples Law Enforcement Board (PLEB). For

3)

4)

5)

6)

7)

Isang Bukas na Liham na Naglalayong

Iparating sa Kataas-Taasang Hukuman ang
Buong Suporta ng Pamunuan at mga Kasapi ng
Samahang Residente ng Mauling Creek, Inc.
(SAREMAC) kay G. Danilo G. De Guzman sa
Kanyang Petisyong Magawaran ng Kapatawaran
at ang Boluntaryong Pag-susulong sa Kanyang
Kakayahan Upang Maibalik sa Kanya ang mga
Pribilehiyo ng Isang Abogado dated 1 June 2007
of the Samahang Residente ng Mauling Creek,
Inc. (SAREMAC), Lower Bicutan, City of Taguig;
Isang Bukas na Liham na Naglalayong
Iparating sa Kataas-Taasang Hukuman ang
Buong Suporta ng Pamunuan at mga Kasapi ng
Samahan ng mga Maralita (PULONG KENDI)
Neighborhood Association, Inc. (SAMANA) kay
G. Danilo G. De Guzman sa Kanyang Petisyong
Magawaran
ng
Kapatawaran
at
ang
Boluntaryong
Pag-susulong
sa
Kanyang
Kakayahan Upang Maibalik sa Kanya ang mga
Pribilehiyo ng Isang Abogado dated 1 June 2007
of the Samahan ng mga Maralita (PULONG
KENDI)
Neighborhood
Association,
Inc.
(SAMANA), Sta. Ana, City of Taguig;
An Open Letter Attesting Personally to the
Competence and Fitness of Danilo G. De
Guzman as to Warrant the Grant of Judicial
Clemency and his Reinstatement as Member of
the Philippine Bar dated 8 June 2007 of Miguelito
Nazareno V. Llantino, Laogan, Trespeses and
Llantino Law Offices;
Testimonial to the Moral and Spiritual
Competence of Danilo G. De Guzman to be Truly
Deserving of Judicial Clemency and Compassion
dated 5 July 2007 of Rev. Fr. Paul G. Balagtas,
Parish Priest, Archdiocesan Shrine of St. Anne;
Testimonial Letter dated 18 February 2008 of
Atty. Loreto C. Ata, President, Far Eastern

University Law Alumni Association (FEULAA),

Far Eastern University (FEU);
8)

Isang Bukas na Liham na Naglalayong

Iparating sa Kataas-Taasang Hukuman ang
Buong Suporta ng Pamunuan at mga Kasapi ng
Samahang Bisig Kamay sa Kaunlaran, Inc.
(SABISKA) kay G. Danilo G. De Guzman sa
Kanyang Petisyong Magawaran ng Kapatawaran
at ang Boluntaryong Pag-susulong sa Kanyang
Kakayahan Upang Maibalik sa Kanya ang mga
Pribilehiyo ng Isang Abogado dated 8 July 2008
of the Samahang Bisig Kamay sa Kaunlaran, Inc.
(SABISKA);

9)

Board Resolution No. 02, Series of 2008, A

Resolution Recognizing the Contributions of
Danilo G. De Guzman to the Peoples Law
Enforcement Board (PLEB) Taguig City, Attesting
to his Utmost Dedication and Commitment to the
Call of Civic and Social Duty and for Other
Purposes dated 11 July 2008 of the Peoples Law
Enforcement Board (PLEB);

10)

A Personal Appeal for the Grant of Judicial

Forgiveness and Compassion in Favor of Danilo
G. De Guzman dated 14 July 2008 of Atty. Edwin
R.
Sandoval,
Professor, Collegeof Law, San
Sebastian College Recoletos;

11)

An Open Letter Personally Attesting to the

Moral competence and Fitness of Danilo G. De
Guzman dated 5 September 2008 of Mr. Nixon F.
Faderog, Deputy Grand [Kn]ight, Knights of
Columbus and President, General ParentTeacher
Association, Taguig National High
School, Lower Bicutan, Taguig City;

12)

Testimonial Letter dated 5 September 2008 of

Atty. Primitivo C. Cruz, President, Taguig Lawyers
League, Inc., Tuktukan, Taguig City;

13)

14)

Testimonial Letter dated 21 October 2008 of

Judge Hilario L. Laqui, Presiding Judge, Regional
Trail Court (RTC), Branch 218, Quezon City; and
Testimonial Letter dated 28 October 2008 of
Justice Oscar M. Herrera, former Justice, Court
of Appeals and former Dean, Institute of Law, Far
Eastern University (FEU).

Citing the case of In Re: Carlos S. Basa, petitioner

pleaded that he be afforded the same kindness and compassion in
order that, like Atty. Basa, his promising future may not be
perpetually foreclosed. In the said case, the Court had the occasion
to say:
Carlos S. Basa is a young man about 29 years of age,
admitted to the bars of California and the Philippine
Islands. Recently, he was charged in the Court of First
Instance of the City of Manila with the crime of abduction
with consent, was found guilty in a decision rendered by
the Honorable M.V. De Rosario, Judge of First Instance,
and was sentenced to be imprisoned for a period of two
years, eleven months and eleven days of prision
correccional. On appeal, this decision was affirmed in a
judgment handed down by the second division of the
Supreme Court.
xxxx
When come next, as we must, to determine the exact
action which should be taken by the court, we do so
regretfully and reluctantly. On the one hand, the violation
of the criminal law by the respondent attorney cannot be
lightly passed over. On the other hand, we are willing to
strain the limits of our compassion to the uttermost in
order that so promising a career may not be utterly ruined.
Petitioner promised to commit himself to be more
circumspect in his actions and solemnly pledged to exert all efforts
to atone for his misdeeds.

There may be a reasonable ground to consider the herein

Petition.
In the case of Re: Petition of Al Argosino to Take the
Lawyers Oath (Bar Matter 712), which may be applied in the
instant case, the Court said:
After a very careful evaluation of this case, we
resolve to allow petitioner Al Caparros Argosino to take the
lawyer's oath, sign the Roll of Attorneys and practice the
legal profession with the following admonition:
In allowing Mr. Argosino to take the lawyers 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.
xxxx
Meanwhile, in the case of Rodolfo M. Bernardo vs. Atty. Ismael F.
Mejia (Administrative Case No. 2984), the Court [in] deciding
whether or not to reinstate Atty. Mejia to the practice of law stated:
The Court will take into consideration the
applicants character and standing prior to the disbarment,
the nature and character of the charge/s for which he was
disbarred, his conduct subsequent to the disbarment and
the time that has elapsed in between the disbarment and
the application for reinstatement.
Petitioner was barely thirty (30) years old and had only been in the
practice of law for five (5) years when he was disbarred from the
practice of law. It is of no doubt that petitioner had a promising
future ahead of him where it not for the decision of the Court
stripping off his license.

Petitioner is also of good moral repute, not only before but likewise,
after his disbarment, as attested to overwhelmingly by his
constituents, colleagues as well as people of known probity in the
community and society.
Way before the petitioner was even admitted to the bar, he had
already manifested his intense desire to render public service as
evidenced by his active involvement and participation in several
social and civic projects and activities. Likewise, even during and
after his disbarment, which could be perceived by some as a
debilitating circumstance, petitioner still managed to continue
extending his assistance to others in whatever means possible.
This only proves petitioners strength of character and positive
moral fiber.
However, still, it is of no question that petitioners act in copying the
examination questions from Atty. Balgos computer without the
latters knowledge and consent, and which questions later turned
out to be the bar examinations questions in Mercantile Law in the
2003 Bar Examinations, is not at all commendable. While we do
believe that petitioner sincerely did not intend to cause the damage
that his action ensued, still, he must be sanctioned for unduly
compromising the integrity of the bar examinations as well as of this
Court.
We are convinced, however, that petitioner has since reformed and
has sincerely reflected on his transgressions. Thus, in view of the
circumstances and likewise for humanitarian considerations, the
penalty of disbarment may now be commuted to suspension.
Considering the fact, however, that petitioner had already been
disbarred for more than five (5) years, the same may be considered
as proper service of said commuted penalty and thus, may now be
allowed to resume practice of law.
WHEREFORE, PREMISES CONSIDERED, it is respectfully
recommended that the instant Petition for Judicial Clemency and
Compassion dated 10 November 2008 of petitioner DANILO G. DE
GUZMAN be GRANTED. Petitioners disbarment is now commuted
to suspension, which suspension is considered as served in view of
the petitioners five (5) year disbarment. Hence, petitioner may now
be allowed to resume practice of law.

The recommendation of the Office of the Bar Confidant is welltaken in part. We deem petitioner worthy of clemency to the extent of
commuting his penalty to seven (7) years suspension from the practice of
law, inclusive of the five (5) years he has already served his disbarment.

Penalties, such as disbarment, are imposed not to punish but to

correct offenders.[2] While the Court is ever mindful of its duty to discipline its
erring officers, it also knows how to show compassion when the penalty
imposed has already served its purpose.[3]

In cases where we have deigned to lift or commute the supreme

penalty of disbarment imposed on the lawyer, we have taken into account
the remorse of the disbarred lawyer[4] and the conduct of his public life during
his years outside of the bar.[5] For example, in Valencia v. Antiniw, we held:
However, the record shows that the long period of
respondent's disbarment gave him the chance to purge himself of
his misconduct, to show his remorse and repentance, and to
demonstrate his willingness and capacity to live up once again to
the exacting standards of conduct demanded of every member of
the bar and officer of the court. During respondent's disbarment for
more than fifteen (15) years to date for his professional infraction,
he has been persistent in reiterating his apologies and pleas for
reinstatement to the practice of law and unrelenting in his efforts to
show that he has regained his worthiness to practice law, by his
civic and humanitarian activities and unblemished record as an

elected public servant, as attested to by numerous civic and

professional organizations, government institutions, public officials
and members of the judiciary.[6]
And in Bernardo v. Atty. Mejia,[7] we noted:
Although the Court does not lightly take the bases for Mejias
disbarment, it also cannot close its eyes to the fact that Mejia is
already of advanced years. While the age of the petitioner and the
length of time during which he has endured the ignominy of
disbarment are not the sole measure in allowing a petition for
reinstatement, the Court takes cognizance of the rehabilitation of
Mejia. Since his disbarment in 1992, no other transgression has
been attributed to him, and he has shown remorse. Obviously, he
has learned his lesson from this experience, and his punishment
has lasted long enough. x x x

Petitioner has sufficiently demonstrated the remorse expected of him

Petitioners subsequent track record in public service affords the Court some
hope that if he were to reacquire membership in the Philippine bar, his
achievements as a lawyer would redound to the general good and more than
mitigate the stain on his record. Compassion to the petitioner is
warranted. Nonetheless, we wish to impart to him the following stern
warning:
Of all classes and professions, the lawyer is most sacredly bound
to uphold the laws. He is their sworn servant; and for him, of all
men in the world, to repudiate and override the laws, to trample
them underfoot and to ignore the very bands of society, argues
recreancy to his position and office and sets a pernicious example
to the insubordinate and dangerous elements of the body politic.[8]

considering the gravity of his transgressions. Even more to his favor,

petitioner has redirected focus since his disbarment towards public service,
particularly with the Peoples Law Enforcement Board. The attestations
submitted by his peers in the community and other esteemed members of
the legal profession, such as retired Court of Appeals Associate Justice
Oscar Herrera, Judge Hilario Laqui, Professor Edwin Sandoval and Atty.
Lorenzo Ata, and the ecclesiastical community such as Rev. Fr. Paul
Balagtas testify to his positive impact on society at large since the
unfortunate events of 2003.

WHEREFORE, in view of the foregoing, the Petition for Judicial Clemency

and Compassion is hereby GRANTED IN PART. The disbarment of DANILO
G. DE GUZMAN from the practice of law is hereby COMMUTED to SEVEN
(7) YEARS SUSPENSION FROM THE PRACTICE OF LAW, reckoned from
February 4, 2004.