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SUSPENSION, DISBARMENT AND DISCIPLINE OF LAWYERS

What is disbarment?

Disbarment is the act of the court in withdrawing from an attorney the right to practice law (Black's
Law Dictionary, 371).

The penalty of disbarment shall be meted out only when the lawyers misconduct borders on the
criminal and/or is committed under scandalous circumstance. (Nevada v. Atty. Rodolfo D. Casuga,
A.C. No. 7591, March 20, 2012)

a. Nature of disbarment proceedings

Disbarment proceeding is a quasi-summary proceeding instituted and prosecuted before an


appropriate court for the purpose of depriving an attorney of his license to practice his profession
by reason of some misconduct (Ballantine Law Dictionary, p. 379).

This rule is premised on the nature of disciplinary proceedings. A proceeding for suspension or
disbarment is not a civil action where the complainant is a plaintiff and the respondent lawyer is
a defendant. Disciplinary proceedings involve no private interest and afford no redress for
private grievance. They are undertaken and prosecuted solely for the public welfare. They are
undertaken for the purpose of preserving courts of justice from the official ministration of persons
unfit to practice in them. The attorney is called to answer to the court for his conduct as an
officer of the court. (Bautista v. Atty. Sergio E. Bernabe, A.C. No. 6963, February 9, 2006)

1. It is not a civil or criminal proceeding


2. Double jeopardy cannot be availed of as a defense
3. It can be instituted motuproprioby the Supreme Court or the IBP
4. It can proceed regardless of interest of lack of interest of complainant
5. It is confidential
6. It is imprescriptible
7. It constitutes due process in itself

b. Procedure of Disbarment, Suspension, or Discipline (Sec. 1, Rule 139-B, RRC, as amended


by Bar Matter No. 1960, May 1, 2000)

Who may take cognizance of the case?


o May be taken by the Supreme Court moto proprio; or
o May be taken by the Integrated Bar of the Philippines upon the verified complaint
of any person.
Contents of the complaint; Filing
o Facts complained of;
o Supported by affidavits of persons having personal knowledge of the facts therein
alleged; and/or
o By such documents as may substantiate said facts.
o 6 copies of the verified complaint shall be filed with the IBP Secretary or with the
Secretary of any of its chapters, who shall forthwith transmit the same to the IBP
Board of Governors for assignment to an investigator.
Initiation and Prosecution
o IBP Board of Governors, moto proprio; or
o IBP Board of Governors, upon referral by the Supreme Court; or
o By a Chapter Board of Officers; or
o At the instance of any person
Charges Against CA, Sandiganbayan Justices; CTA Judges, and judges of lower courts,
even if lawyers are jointly charged with them to be filed with the Supreme Court
Charges filed against Justices and Judges filed before the IBP (even if filed prior to their
appointment in the Judiciary) immediately forwarded to the Supreme Court for disposition
and adjudication

c. Grounds for disbarment or suspension (Sec. 27, Rule 138, RRC)


1. Deceit;
2. Malpractice or other gross misconduct in such office;
3. Gross immoral conduct;
4. Conviction of a crime involving moral turpitude;
5. Violation of oath of office;
6. Willful disobedience of a lawful order of a superior court;
7. Corruptly or willfully appearing as an attorney for a party to a case without authority to do so;
and
8. Disbarment in foreign jurisdiction.

The disbarment or suspension of a member of the Philippine Bar by a competent court or other
disciplinatory agency in a foreign jurisdiction where he has also been admitted as an attorney
is a ground for his disbarment or suspension if the basis of such action includes any of the acts
hereinabove enumerated. The judgment, resolution or order of the foreign court or disciplinary
agency shall be prima facie evidence of the ground for disbarment or suspension (In Re:
Suspension from the Practice of Law in the Territory of Guam of Atty. Leon G. Maquera, B.M
No. 793, July 30, 2004)

The grounds enumerated are NOT exclusive. The statutory enumeration is not to be taken as a
limitation on the general power of Supreme Court to suspend or disbar a lawyer, Hence, a lawyer
may be removed from office, or suspended from the practice of law by the Court on grounds not
found in the statute as when their acts are contrary to honesty or good morals or do not
approximate the highest degree of morality and integrity expected of the members of the bar
(Sta. Maria v. Tuazon, A.C. No. 396, July 31, 1964)

What is Suspension?

Suspension is the act of the court prohibiting an attorney from practicing law for a certain definite
period (Archer, Ethical Obligations of a Lawyer, p. 282). It is a qualified disbarment because the
attorney is deprived temporarily of his right to practice his profession. (Martin, Legal and Judicial
Ethics, 139).

What is the nature Court's power to suspend or disbar?

The right or power to discipline lawyers through suspension or disbarment is inherent in the courts
and has been exercised from the earliest times. The power to suspend or disbar a lawyer is judicial
in its nature and can be exercised only by courts. It cannot be defeated by the legislative and
executive departments. This right or power is also a duty which the courts owe to the public. By
admitting a person to the bar and allowing him to practice, the courts hold him out to the public as
one mentally or morally fit to guard their interests and aid them in the solution of their legal problems.
Consequently, when a lawyer appears unfit or unsafe to be entrusted with the responsibilities and
obligations of an attorney, it becomes the duty of the court to disown him as its officer and thus
prevent the public's misguidance. (Martin, Legal and Judicial Ethics, p. 139).

The Supreme Court of the Philippines is expressly empowered by the Rules of Court, to suspend
or disbar a lawyer from the practice of law. The Court of Appeals and the Court of First Instance,
(now the Regional Trial Court) may likewise suspend, but not disbar, lawyers from practicing their
profession. Suspension decreed by these two courts, may be revoked, extended or modified or
extended to disbarment by the Supreme Court, after a full investigation of the facts. Until such further
action by the Supreme Court, the decree of suspension stands. (The Ethical Conduct of a Lawyer,
241 SCRA 128, 1995)

What is the requisite proof in disbarment proceedings?

In disbarment proceedings, the burden of proof is on the complainant; the Court exercises its
disciplinary power only if the complainant establishes her case by clear, convincing, and satisfactory
evidence. Preponderance of evidence means that the evidence adduced by one side is, as a whole,
superior to or has a greater weight than that of the other party. When the pieces of evidence of the
parties are evenly balanced or when doubt exists on the preponderance of evidence, the equipoise
rule dictates that the decision be against the party carrying the burden of proof. (Ylaya vs. Atty. Glenn
Carlos Gacott, A.C. No. 6475, January 30, 2013)

What is the prescriptive period to file a complaint for disbarment?

No matter how much time has elapsed from the time of the commission of the act complained of and
the time of the institution of the complaint, erring members of the bench and bar cannot, escape the
disciplining arm of the Court. This categorical pronouncement is aimed at unscrupulous members of
the bench and bar, to deter them from committing acts which violate the Code of Professional
Responsibility, the Code of Judicial Conduct, or the Lawyers Oath. (Heck vs. Santos, A.M. No. RTJ-
01-1657, February 23, 2004)
The filing of a disciplinary complaint does not prescribe, regardless of the number of years that lapsed
(Heirs of Lydio Falame v. Baguio, A.C. No. 6876, March 7, 2008).

Gross Misconduct has been defined as any inexcusable, shameful or flagrantly unlawful conduct
on the part of the person involved in the administration of justice, conduct that is prejudicial to the
rights of the parties or to the right determination of the cause. Such conduct is generally motivated
by a premeditated, obstinate or intentional purpose. The term, however, does not necessarily imply
corruption or criminal intent (Buehs vs. Atty. Bacatan, A.C. No. 6674, June 30, 2009).

a. Degree of misconduct to warrant suspension or disbarment

It is not necessary that the misconduct should be such as would render the attorney liable to
criminal prosecution. His conduct which shows that he is unfit to discharge the duties of his
office, or is unworthy of confidence would be sufficient. (People v. Smith, 93 Am St. Rep. 206).
However, it has been said that to justify disbarment, the misconduct should be one that may be
properly characterized as gross. (Re Lentz, 50 LRA 415).

The Court defined immoral conduct as conduct that is willful, flagrant or shameless, and that
shows a moral indifference to the opinion of the good and respectable members of the
community. To justify suspension or disbarment, the act complained of must not only be
immoral, but grossly immoral. A grossly immoral act is one that is so corrupt and false as to
constitute a criminal act or an act so unprincipled or disgraceful as to be reprehensible to a high
degree. (Abanag v. Mabute, A.M. No. P-11-2922, April 4, 2011)

b. Grossly immoral conduct justifies suspension for conduct unbecoming of a member of


the bar

Evidence of good moral character precedes admission to bar (Sec.2, Rule 138, Rules of Court)
and such requirement is not dispensed with upon admission thereto. Good moral character is a
continuing qualification necessary to entitle one to continue in the practice of law. The ancient
and learned profession of law exacts from its members the highest standard of morality
(Quingwa v. Puno, A.C. No. 389. February 28, 1967).

c. Gross misconduct extends to such acts not related to the discharge of professional
duties

A lawyer may be disciplined not only for malpractice and dishonesty in his profession but also
for gross misconduct outside of his professional capacity. While the Court may not ordinarily
discipline a lawyer for misconduct committed in his non-professional or private capacity, the
Court may be justified in suspending or removing him as an attorney where his misconduct
outside of the lawyer professional dealings is so gross in character as to show him morally unfit
and unworthy of the privilege which his licenses and the law confer. (Heenan vs. Atty. Erlinda
Espejo, A.C. No. 10050, Dec. 3, 2013)

Kinds of Contempt

Direct Contempt (Sec. 1, Rule 71, RRC) A person guilty of misbehavior in the presence of
or so near a court as to obstruct or interrupt the proceedings before the same, including:
o Disrespect towards the court
o Offensive personalities towards others
o Refusal to be sworn or to answer as a witness
o Refusal to subscribe an affidavit or deposition when lawfully required to do so. x x x x

Indirect or Constructive Contempt one committed away from the court involving
disobedience of or resistance to a lawful writ, process, order, judgment or command of the court,
tending to belittle, degrade, obstruct, interrupt or embarrass the court.

(Sec. 3, Rule 71, RRC)


o Misbehavior of an officer of a court in the performance of his official duties or in his
official transactions;
o Disobedience of or resistance to a lawful writ, process, order, or judgment of a court;
o Any abuse of or any unlawful interference with the processes or proceedings of a court
not constituting direct contempt;
o Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the
administration of justice;
o Assuming to be an attorney or an officer of a court, and acting as such without authority;
o Failure to obey a subpoena duly served;
o The rescue, attempted rescue of a person or property in the custody of an officer by
virtue of an order or process of a court held by him.

Other Acts Constituting Contempt

1. Making false allegations, criticism, insults, veiled threats against the courts
2. Aiding in unauthorized practice of law (suspended or disbarred)
3. Unlawful retention of clients funds
4. Advise client to commit contemptuous act

What is the rule on lawyers who have been repatriated?

General Rule: The practice of all professions in the Philippines shall be limited to Filipino citizens
pursuant to Section 14, Article XXII of the 1987 Constitution. Hence, the loss of Philippine citizenship
ipso jure terminates the privilege to practice law in the Philippines

Exception: Pursuant to the Citizenship Retention and Re-acquisition Act of 2003 (R.A. 9225), a
Filipino lawyer who becomes a citizen of another country is deemed never to have lost his Philippine
citizenship if he reacquires it in accordance with said law.

Thus, if a Filipino is naturalized as a citizen of another country and subsequently reacquires his
Philippine citizenship pursuant to R.A. 9225, he is deemed never to have terminated his membership
in the Philippine Bar (Funa, Legal and Judicial Ethics: With Bar Examination Questions, 2009, p.
385).

The right of such lawyer to practice law DOES NOT AUTOMATICALLY ACCRUE. Pursuant to
abovementioned Act, those intending to practice their profession in the Philippines shall apply with
the proper authority for a license or permit to engage in such practice (Sec. 5[4], R.A. 9225).

What are the conditions before repatriated lawyer can resume his practice of law in the
Philippines?

Under RA 9225, if a person intends to practice the legal profession in the Philippines and he
reacquires his Filipino citizenship pursuant to its provisions (he) shall apply with the proper authority
for a license or permit to engage in such practice. Stated otherwise, before a lawyer who reacquires
Filipino citizenship pursuant to RA 9225 can resume his law practice, he must first secure from this
Court the authority to do so, conditioned on:

a. the updating and payment in full of the annual membership dues in the IBP;
b. the payment of professional tax;
c. the completion of at least 36 credit hours of mandatory continuing legal education; this is specially
significant to refresh the applicant/petitioners knowledge of Philip-pine laws and update him of
legal developments and
d. the retaking of the lawyers oath which will not only remind him of his duties and responsibilities
as a lawyer and as an officer of the Court, but also renew his pledge to maintain allegiance to
the Republic of the Philippines. (Petition for Leave to Resume Practice of Law, Benjamin M.
Dacanay, 540 SCRA 424, 2007)

NEW CODE OF JUDICIAL CONDUCT FOR THE PHILIPPINE JUDICIARY

This Code supersedes the Canons of Judicial Ethics and the Code of Judicial Conduct to the extent that
the provisions or concepts therein are embodied in this Code, provided that in case of deficiency or
absence of specific provisions in this Code, the Canons of Judicial Ethics and the Code of Judicial
Conduct should be applicable in a suppletory character. This was adopted from the universal declaration
of standards for ethical conduct embodied in the Bangalore Draft as revised at the Round Table
Conference of Chief Justices at the Hague (A.M. No. 030501SC, June 1, 2004).

DISQUALIFICATION OR INHIBITION OF JUDGES

In Section 5, Canon 3 of the New Code of Judicial Conduct, the Judges shall disqualify themselves from
participating in any proceedings in which they are unable to decide the matter impartially or in which it
may appear to a reasonable observer that they are unable to decide the matter impartially. Such
proceedings include, but are not limited to, instances where:

1. The Judge has actual bias or prejudice concerning a party or personal knowledge of disputed
evidentiary facts concerning the proceedings;
2. The Judge previously served as a lawyer or was a material witness in the matter in controversy;
3. The Judge, or a member of his or her family, has an economic interest in the outcome of the matter
in controversy;
4. The Judge served as executor, administrator, guardian, trustee or lawyer in the case or matter in
controversy, or a former associate of the judge served as counsel during their association, or the
judge or lawyer was a material witness therein;
5. The Judges ruling in a lower court is subject of review;
6. The Judge is related by consanguinity or affinity to a arty litigant within the sixth civil degree or to
counsel within the fourth civil degree; or
7. The Judge knows that his or her spouse has a financial interest as heir, legatee, creditor, fiduciary,
or otherwise, in the subject matter in controversy or in a part to the proceeding, or any other interest
that could be substantially affected by the outcome of the proceedings.

Under the Rules of Court, the grounds for MANDATORY OR COMPULSORY DISQUALIFICATION
(Rule 131, RRC) are:

1. He or his wife or his child is pecuniary interested as heir, legatee, creditor or otherwise;
2. Relation to either party within the sixth degree of consanguinity or affinity or to counsel within the
fourth civil degree
3. When he has been an executor, guardian, administrator, trustee or counsel;
4. When he has presided in an inferior court where his ruling or decision is subject to review

However, a judge may also voluntarily inhibit himself for just and valid reasons other than those
mentioned above (Sec. 1, Rule 137).

DISQUALIFICATION INHIBITION
The Rules enumerate the specific and exclusive The Rules does not expressly enumerate the
grounds under which any judge or judicial officer specific grounds for inhibition but merely gives a
is disqualified from acting as such. broad basis thereof, i.e. good sound or ethical
grounds
Rules give the judicial officer NO DISCRETION to Rules leave the matter of inhibition to the
try or sit in a case. SOUND DISCRETION of the judge.

Requirements to continue hearing the case despite existence of reasons for disqualification:
a) Bona fide disclosure to the parties-in-litigation;
b) Express acceptance by all the parties of the cited reason as not material or substantial;
c) Agreement is in writing, signed by the parties and counsels; and
d) Agreement incorporated in the records of the proceedings

[NOTE: Absent any of these, the judge may not continue to hear the case]

To effectively remit disqualification, a judge must disclose on the record the basis of the disqualification
and ask the parties and lawyers to consider out of the presence of the judge, whether to waive the
disqualification. As long as the disqualification is not based upon personal bias or prejudice, the parties
and lawyers may all agree that the judge should not be disqualified. If all parties and the judge agree
that the judge should participate, the judge may participate, and must incorporate the agreement into
the record of the proceeding.
Discipline of judges

Disciplinary proceedings and criminal actions brought against any judge in relation to the performance
of his official functions are neither complementary to nor suppletory of appropriate judicial remedies nor
a substitute for such remedies. A judges failure to correctly interpret the law or to properly appreciate
the evidence presented does not necessarily incur administrative liability, to hold him administratively
accountable for every erroneous ruling or decision he renders, assuming he has erred, will be nothing
short of harassment and will make his position doubly unbearable (Re: Verified complaint of Engr. Oscar
L. Ongjoco, Chairman of the Board/ CEO etc. against Hon. Juan Q. Enriquez, Jr., et al., A.M. OCA IPI
No. 11-184-CA-J, January 31, 2012).

It is only after the available judicial remedies have been exhausted and the appellate tribunals have
spoken with finality that the door to an inquiry into his criminal, civil, or administrative liability may be
said to have opened or closed (Re: Administrative Matter No. 05-8-244-MTC records of cases which
remained in the custody of Retired Judge Romulo G. Carteciano, Municipal Trial Court, Los Bano,
Laguna, A.M. No. MTJ071664, February 18, 2008).

The fact that a judge has retired or has been separated from the service does not necessarily divest the
court of its jurisdiction to determine the veracity of the allegations of the complaint, pursuant to its
disciplinary authority over the members of the Bench, as held in Gallos vs. Cordero. A judge may be
disciplined for acts committed prior to his appointment to the judiciary. In fact, Rule 139-B expressly
provides for this circumstance. It need not be shown that the judge continued doing the act or acts
complained of (Heck vs. Santos, A.M. RTJ 01-1657, February 23, 2004).