SECOND DIVISION

HUMBERTO C. LIM, JR., A.C. No. 5303

in behalf of PENTA RESORTS
CORPORATION/Attorney-in-
Fact of LUMOT A. JALANDONI,
Complainant, Present:

PUNO, J., Chairperson,

SANDOVAL-GUTIERREZ,
- v e r s u s - CORONA,
AZCUNA and
GARCIA, JJ.

ATTY. NICANOR V. VILLAROSA,

Respondent. Promulgated:

June 15, 2006

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

RESOLUTION

CORONA, J.

Humberto C. Lim Jr.[1] filed a verified complaint for disbarment against

respondent Atty. Nicanor V. Villarosa on July 7, 2000.[2] On February 19, 2002,
respondent moved for the consolidation of the said complaint with the following
substantially interrelated cases earlier filed with the First Division of this
Court:

1. Administrative Case No. 5463: Sandra F. Vaflor v. Atty. Adoniram P.

Pamplona and Atty. Nicanor V. Villarosa;
2. Administrative Case No. 5502: Daniel A. Jalandoni v. Atty. Nicanor V.
Villarosa.

In a resolution dated February 24, 2003, this Court considered Administrative

Case No. 5463 closed and terminated.[3] On February 4, 2004, considering the
pleadings filed in Administrative Case No. 5502, the Court resolved:

(a) to NOTE the notice of the resolution dated September 27, 2003 of the Integrated
Bar of the Philippines dismissing the case against respondent for lack of merit; and
(b) to DENY, for lack of merit, the petition filed by complainant praying that the
resolution of the Integrated Bar of the Philippines dismissing the instant case be
reviewed and that proper sanctions be imposed upon respondent.[4]

No motion for reconsideration of the aforesaid denial in Administrative

Case No. 5502 appears in the records. The Court is now called upon to
determine the merits of this remaining case (A.C. No. 5303) against
respondent.
The complaint read:

AS FIRST CAUSE OF ACTION

xxx xxx xxx

- II -

That respondent is a practicing lawyer and a member of the Integrated Bar of the
Philippines, Bacolod City, Negros Occidental Chapter. That sometime on September
19, 1997, Lumot A. Jalandoni, Chairman/President of PRC was sued before RTC,
Branch 52 in Civil Case No. 97-9865, RE: Cabiles et al. vs. Lumot Jalandoni, et al. The
latter engaged the legal services of herein respondent who formally entered his
appearance on October 2, 1997 as counsel for the defendants Lumot A. Jalandoni/Totti
Anlap Gargoles. Respondent as a consequence of said Attorney-Client relationship
represented Lumot A. Jalandoni et al in the entire proceedings of said case. Utmost
trust and confidence was reposed on said counsel, hence delicate and confidential
matters involving all the personal circumstances of his client were entrusted to the
respondent. The latter was provided with all the necessary information relative to the
property in question and likewise on legal matters affecting the corporation (PRC)
particularly [involving] problems [which affect] Hotel Alhambra. Said counsel was privy
to all transactions and affairs of the corporation/hotel.

- III -

That it was respondent who exclusively handled the entire proceedings of afore-cited
Civil Case No. 97-9865 [and] presented Lumot A. Jalandoni as his witness prior to
formally resting his case. However, on April 27, 1999 respondent, without due notice
prior to a scheduled hearing, surprisingly filed a Motion to withdraw as counsel, one day
before its scheduled hearing on April 28, 1999. A careful perusal of said Motion to
Withdraw as Counsel will conclusively show that no copy thereof was furnished to
Lumot A. Jalandoni, neither does it bear her conformity. No doubt, such notorious act of
respondent resulted to (sic) irreparable damage and injury to Lumot A. Jalandoni, et al
since the decision of the court RTC, Branch 52 proved adverse to Lumot A. Jalandoni,
et al. The far reaching effects of the untimely and unauthorized withdrawal by
respondent caused irreparable damage and injury to Lumot A. Jalandoni, et al; a highly
meritorious case in favor of his client suddenly [suffered] unexpected defeat.

- IV -

That the grounds alleged by respondent for his withdrawal as counsel of Lumot A.
Jalandoni, et al. was that he is [a] retained counsel of Dennis G. Jalbuena and the
Fernando F. Gonzaga, Inc. It was Dennis G. Jalbuena who recommended him to be the
counsel of Lumot A. Jalandoni, et al. It is worthy to note that from the outset, respondent
already knew that Dennis G. Jalbuena is the son-in-law of Lumot A. Jalandoni being
married to her eldest daughter, Carmen J. Jalbuena. The other directors/officers of PRC
were comprised of the eldest sibling of the remaining children of Lumot A. Jalandoni
made in accordance with her wishes, with the exception of Carmen J. Jalbuena, the
only daughter registered as one of the incorporators of PRC, obviously, being the author
of the registration itself [sic]. Respondent further stated that he cannot refuse to
represent Dennis G. Jalbuena in the case filed against the latter before the City
Prosecutors Office by PRC/Lumot A. Jalandoni due to an alleged retainership
agreement with said Dennis G. Jalbuena. [He] likewise represented Carmen J.
Jalbuena and one Vicente Delfin when PRC filed the criminal complaint against them.
On April 06, 1999, twenty-one (21) days prior to respondents filing of his Motion to
Withdraw as Counsel of Lumot A. Jalandoni, et al., respondent entered his appearance
with Bacolod City Prosecutor OIC-Vicente C. Acupan, through a letter expressly
stating that effective said date he was appearing as counsel for both Dennis G.
Jalbuena and Carmen J. Jalbuena and Vicente Delfin in the Estafa case filed by the
corporation (PRC) against them. Simply stated, as early as April 6, 1999 respondent
already appeared for and in behalf of the Sps. Carmen and Dennis Jalbuena/Vicente
Delfin while concurrently representing Lumot A. Jalandoni, et al. in Civil Case No. 97-
9865. However, despite being fully aware that the interest of his client Lumot A.
Jalandoni [holding an equivalent of Eighty-two (82%) percent of PRCs shares of stocks]
and the interest of PRC are one and the same, notwithstanding the fact that Lumot A.
Jalandoni was still his client in Civil Case No. 97-9862, respondent opted to represent
opposing clients at the same time. The corporations complaint for estafa
(P3,183,5525.00) was filed against the Sps. Dennis and Carmen J. Jalbuena together
with UCPB bank manager Vicente Delfin. Succeeding events will show that respondent
instead of desisting from further violation of his [lawyers] oath regarding fidelity to his
client, with extreme arrogance, blatantly ignored our laws on Legal Ethics, by palpably
and despicably defending the Sps. Dennis and Carmen J. Jalbuena in all the cases filed
against them by PRC through its duly authorized representatives, before the Public
Prosecutors Office, Bacolod City (PP vs. Sps. Dennis and Carmen J. Jalbuena for False
Testimony/Perjury, viol. of Art. 183 RPC under BC I.S. No. 2000-2304; viol. of Art. 363,
364, 181 and 183 RPC under BC I.S. 2000-2343, PP vs. Carmen J. Jalbuena for viol. of
Art. 315 under BC I.S. 2000-2125 and various other related criminal cases against the
Sps. Dennis and Carmen Jalbuena).
AS SECOND CAUSE OF ACTION
xxx xxx xxx

-I-

xxx xxx xxx

There is no dispute that respondent was able to acquire vast resources of confidential
and delicate information on the facts and circumstances of [Civil Case No. 97-9865]
when Lumot A. Jalandoni was his client which knowledge and information was acquired
by virtue of lawyer-client relationship between respondent and his clients. Using the said
classified information which should have been closely guarded respondent did then and
there, willfully, unlawfully, feloniously conspired and confabulated with the Sps. Dennis
and Carmen J. Jalbuena in concocting the despicable and fabricated charges against
his former clients denominated as PP vs. Lumot A. Jalandoni, Pamela J. Yulo, Cristina
J. Lim and Leica J. Lim for viol. of Art. 172 of Revised Penal Code due to a board
resolution executed by the corporation which the Sps. Jalbuena, with the assistance of
herein respondent, claimed to have been made without an actual board meeting due to
an alleged lack of quorum, [among other things]. Were it not for said fiduciary relation
between client and lawyer, respondent will not be in a position to furnish his conspirator
spouses with confidential information on Lumot A. Jalandoni/PRC, operator of Alhambra
Hotel.

- II -

Adding insult to injury, respondent opted to deliberately withhold the entire case file
including the marked exhibits of the Cabiles case for more than three (3) months after
his untimely unilateral withdrawal therefrom, despite repeated demands from [his]
client. On July 26, 1999, capitalizing on his knowledge of the indispensability of said
documents particularly the marked exhibits, which deadline to file the formal offer of
exhibits was continually impressed upon the new counsel by the court, respondent
suddenly interposed an amount of five thousand (P5,000.00) pesos as consideration
prior to or simultaneous to the turnover of said documents. [On] July 29, 1999, left with
no other alternative owing to the urgency of the situation, PRC issued Check No.
2077686 for P5,000.00 in payment thereof. This was duly received by respondents
office on the same date. Such dilatory tactics employed by respondent immensely
weakened the case of Lumot A. Jalandoni eventually resulting to (sic) an adverse
decision against [her].

Further demonstrating before this Honorable Court the notoriety of respondent in

representing conflicting interest which extended even beyond the family controversy
was his improper appearance in court in Civil Case No. 99-10660, RE: Amy Albert Que
vs. Penta Resorts Corp., this time favoring the party opponent of defendant who is even
outside the family circle. During the pre-trial hearing conducted on May 5, 1999, while
still [holding] exclusive possession of the entire case file of his client in Civil Case No.
97-9865, respondent brazenly positioned himself beside Atty. Adoniram P. Pamplona,
counsel of plaintiff [in] a suit against his client Lumot A. Jalandoni/PRC, coaching said
counsel on matters [he was privy to] as counsel of said client. Facts mentioned by said
counsel of the plaintiff starting from the last par. of page 25 until and including the entire
first par. of page 26 were the exact words dictated by respondent. The entire incident
was personally witnessed by herein complainant [who was] only an arms length away
from them during the hearing. However, the particular portion showing the said irregular
acts of respondent was deliberately excluded by the court stenographer from the
transcript, despite her detailed recollection and affirmation thereof to herein
complainant. This prompted the new counsel of Lumot A. Jalandoni/PRC to complain to
the court why Atty. Nicanor Villarosa was coaching Atty. Pamplona in such proceedings.
Said corrections were only effected after repeated demands to reflect the actual events
which [transpired] on said pre-trial.[5] (emphasis ours)

In an addendum to the July 4, 2000 complaint, Lim also pointed to certain acts
of respondent which allegedly violated the Rules of Court ― perpetration of
falsehood and abuse of his influence as former public prosecutor. These
supposedly affected the status of the cases that Lim filed against the clients of
respondent.[6]
In a motion to dismiss dated October 30, 2000, respondent claimed that the
complainant violated Circular No. 48-2000 because, in his verification, Lim
stated:

3. That [he] prepared this instant complaint for disbarment against Atty. Nicanor V.
Villarosa, read its contents, the same are all true and correct to [his] own personal
knowledge and belief.[7] (emphasis ours)

Section 4, Rule 7 of the Rules of Court explicitly provides that:

SEC. 4. Verification. Except when otherwise specifically required by law or rule,

pleadings need not be under oath, verified or accompanied by affidavit. (5a)

A pleading is verified by an affidavit that the affiant has read the pleading and that the
allegations therein are true and correct of his personal knowledge or based on authentic
records.

A pleading required to be verified which contains verification based on

information and belief or upon knowledge, information and belief, or lacks a
proper verification, shall be treated as an unsigned pleading. (As amended, A.M.
00-2-10, May 1, 2000.) (emphasis ours)
 While the Rules provide that an unsigned pleading produces no legal
effect,[8] the court may, in its discretion, allow such deficiency to be remedied if
it appears that the same was due to mere inadvertence and not intended for
delay.[9] We find that Lim was not shown to have deliberately filed the pleading
in violation of the Rules.

In his comment dated December 1, 2000, respondent, reiterating his ground

for the dismissal of the complaint, added:

[that] complainant Humberto C. Lim, Jr. has not only violated the Rule on Civil
Procedure but he was/is NOT duly authorize[d] by the Penta Resorts Corp. (PRC) nor
[by] Lumot A. Jalandoni to file this complaint against [him]. Neither [was Lim] a proper
party to file this complaint. This fact is an additional ground to have his case dismissed
because Humberto C. Lim Jr. exceeded whatever authority was granted to him as
embodied in a resolution and the Special Power of Attorney allegedly granted to him by
the complainants.[10]

To bolster his assertion that the complaint against him was unfounded,
respondent presented the following version in his defense:

FACTS OF THE CASE

xxx xxx xxx

That Mrs. Jalandoni has two sons-in-law, namely Dennis G. Jalbuena married to her
daughter, Carmen J. Jalbuena, and Humberto C. Lim Jr., the herein complainant
married to her daughter, Cristina J. Lim.
That Mrs. Lumot Jalandoni organized a corporation namely the Penta Resorts
Corporation (PRC) where she owned almost ninety seven percent (97%). In other
words, in reality, Penta Resorts Corporation is a single proprietorship belonging to Mrs.
Jalandoni. That the only property of the corporation is as above-stated, the Alhambra
Hotel, constructed solely through the effort of the spouses Jalbuena on that parcel of
land now claimed by the Cabiles family.

That sometime on the year 1997 the case above-cited (Civil Case No. 97-9865) was
filed before the court against the sisters.
That [he], being RETAINED counsel of the spouses Dennis and Carmen J.
Jalbuena was RECOMMENDED by the spouses to the sisters to answer the complaint
filed against them.
II.

That as counsel to the sisters, [he] filed a Motion for Extension Of Time To File Answer
and ultimately, [he] filed an Answer With Counter-Claim And Prayer For Issuance Of
Writ Of Preliminary Injunction.

That reading the Answer it is clear that the defense of the sisters totally rest
on public documents (the various titles issued to the land in question because of the
series [of changes] in ownership) and the sisters and their parents actual occupation
and possession thereof. xxx xxx xxx

Mr. Lim[s] accusation against [him] in the light of the above-facts is the best evidence of
Humberto C. Lim, Jr.s penchant for exaggeration and distortion of the truth. Since the
defense of the sisters to retain ownership of the land in question is based
on PUBLIC documents, what delicate and confidential matters involving personal
circumstances of the sisters allegedly entrusted to [him], is Mr. Humberto C. Lim, Jr.
talking about in paragraphs I and II of his Complaint? What [privity] to all transactions
and affairs of the corporation/hotel is he referring to? Whatever transactions the
corporation may have been involved in or [may be getting involved into], is totally
immaterial and irrelevant to the defense of the sisters.

There was nothing personal [about the] circumstances of the sisters nor transactions of
the corporation [which were] discussed. The documents being offered as evidence, [he]
reiterate[s] for emphasis, are public; the presumption is that the whole world knows
about them.

That [he] [also] vehemently den[ies] another distorted allegation of Mr. Lim that [he]
represented Mrs. Jalandoni [in] the entire proceedings of [the] case. [Lim] himself
attested that [he] [filed] [his] Motion to Withdraw As Counsel, dated April 26, 1999 ,
before the trial court, sometime on April 27, 1999. How then could [he] have
represented Mrs. Jalandoni for [the] entire proceedings of the case?

Further, Mr. Lim intentionally hid from this Honorable Court the important fact that [his]
Motion to Withdraw was APPROVED by the trial court because of the possibility of a
conflict of interest. xxx xxx xxx. [11]

Respondent discredited Lims claim that he deliberately withheld the

records of the cited civil case. He insisted that it took him just a few days, not
three months, to turn over the records of the case to Lim.[12] While he admitted
an oversight in addressing the notice of the motion to withdraw as counsel to
Mrs. Totti Anlap Gargoles instead of Mrs. Jalandoni at Hotel Alhambra, he
maintained that it was the height of hypocrisy to allege that Mrs. Jalandoni
was not aware of his motion to withdraw[13] since Mrs. Gargoles is Mrs.
Jalandonis sister and Hotel Alhambra is owned by PRC which, in turn, actually
belongs to Mrs. Jalandoni. Respondent also argued that no prejudice was
suffered by Mrs. Jalandoni because she was already represented by Atty.
Lorenzo S. Alminaza from the first hearing date.[14] In fact, respondent
contended, it was he who was not notified of the substitution of counsels.[15]

As to the bill of P 5,000, respondent stated:

That Mr. Lim begrudge[s] [him] for billing Mrs. Jalandoni Five Thousand
(Php5,000.00) Pesos. Mr. Humberto C. Lim Jr. conveniently forgets that the net worth
of the property together with its improvements, under litigation in that Cabiles, et al. vs.
Gargoles et al. case, is a minimum of THIRTY MILLION (Php30,000,000.00)
PESOS then, and more so now. [He] cannot find any law which prohibits a counsel from
billing a client for services in proportion to the services he rendered.[16]

In view of these developments, respondent was adamant that:

the only real question to be answered in this complaint is why Mr. Lim so consistently
[determined] to immerse the Jalandoni family [in] a series of criminal and civil suits and
to block all attempts to reconcile the family by prolonging litigations, complaints and
filing of new ones in spite of the RESOLUTION of the corporation and the
UNDERTAKING of the members.[17]

On June 18, 2001, the Court resolved to refer the complaint to the
Integrated Bar of the Philippines (IBP) for investigation. Commissioner Lydia A.
Navarro made the following report and recommendation:

xxx xxx xxx

After going over the [pieces of evidence] submitted by the parties[,] the undersigned
noted that from the onset, PRC had a case wherein respondent was its counsel. Later
on, complainant had a case against spouses Jalbuena where the parties were related to
each other and the latter spouses were represented by the respondent as their retained
counsel; after respondent had allegedly withdrawn as counsel for the complainant in
Civil Case No. 97-9865.

Being the husband of one of the complainants which respondent himself averred in his
answer, it is incumbent upon Humberto Lim Jr. to represent his wife as one of the
representatives of PRC and Alhambra Hotel in the administrative complaint to protect
not only her interest but that of the [familys].

From the facts obtaining, it is evident that complainant had a lawyer-client relationship
with the respondent before the latter [was] retained as counsel by the Spouses
Jalbuena when the latter were sued by complainants representative.
We cannot disregard the fact that on this situation for some reason or another there
existed some confidentiality and trust between complainants and respondent to ensure
the successful defense of their cases.

Respondent for having appeared as counsel for the Spouses Jalbuena when charged
by respondents former client Jalandoni of PRC and Alhambra Hotel, represented
conflicting interests in violation of the Canon of Professional Responsibility.
As such therefore, the Undersigned has no alternative but to respectfully recommend
the suspension of the respondent from the practice of law for a period of six (6) months
from receipt hereof.

RESPECTFULLY SUBMITTED.

Pasig City, June 20, 2002.[18]

The IBP Board of Governors (Board), however, reversed the recommendation of

the investigating commissioner and resolved to dismiss the case on August 3,
2002.[19] Lumot A. Jalandoni filed a motion for reconsideration (MR) on October
18, 2002 but the Board denied the MR since it no longer had jurisdiction to
consider and resolve a matter already endorsed

to this Court.[20]

Before delving into the core issues of this case, we need to address some
preliminary matters.

Respondent argues that the alleged resolution of PRC and the special power of
attorney given by Lumot A. Jalandoni to Humberto did not contemplate the
filing of an administrative complaint.[21] Citing the Rules of Court, respondent
said that:

[s]uch complaints are personal in nature and therefore, the filing of the same, cannot
be delegated by the alleged aggrieved party to any third person unless expressly
authorized by law.

We must note, however, the following:

SECTION 1. How instituted. Proceedings for disbarment, suspension or discipline of

attorneys may be taken by the Supreme Court motu propio, or by the Integrated Bar of
the Philippines (IBP) upon the verified complaint of any person. The complaint shall
state clearly and concisely the facts complained of and shall be supported by affidavits
or persons having personal knowledge of the facts therein alleged and/or by such
documents a may substantiate said facts.
 The IBP Board of Governors may, motu propio or upon referral by the Supreme Court or
by a Chapter Board of Officers, or at the instance of any person, initiate and
prosecute proper charges against any erring attorneys.[22] (emphasis ours)

Complaints against members of the Bar are pursued to preserve the

integrity of the legal profession, not for private vendetta. Thus, whoever has
such personal knowledge of facts constituting a cause of action against erring
lawyers may file a verified complaint with the Court or the IBP.[23] Corollary to
the public interest in these proceedings is the following rule:

SEC. 11. Defects. No defect in a complaint, notice, answer, or in the proceeding or

the Investigators Report shall be considered as substantial unless the Board of
Governors, upon considering the whole record, finds that such defect has resulted
or may result in a miscarriage of justice, in which event the Board shall take such
remedial action as the circumstances may warrant, including invalidation of the entire
proceedings.[24] (emphasis ours)

Respondent failed to substantiate his allegation that Lims complaint was

defective in form and substance, and that entertaining it would result in a
miscarriage of justice. For the same reason, we will no longer put in issue the
filing at the onset of a motion to dismiss by respondent instead of an answer or
comment.[25]

The core issues before us now are:

1. whether there existed a conflict of interest in the cases represented and

handled by respondent, and
2. whether respondent properly withdrew his services as counsel of record in
Civil Case No. 97-9865.

CONFLICT OF INTEREST

Petitioners alleged that as an offshoot of representing conflicting interests,

breach of attorney-client confidentiality and deliberate withholding of records
were committed by respondent. To effectively unravel the alleged conflict of
interest, we must look into the cases involved.

In Civil Case No. 97-9865, respondent represented Lumot A. Jalandoni and

Totti Anlap Gargoles. This was a case for the recovery of possession of property
involving Hotel Alhambra, a hotel owned by PRC.

In BC I.S. No. 99-2192, Lim v. Vicente Delfin, Spouses Dennis and Carmen
Jalbuena, respondent was counsel for Delfin and the spouses Jalbuena. In this
case, plaintiff Cristina Lim sued the spouses Jalbuena and Delfin on the basis
of two checks issued by PRC for the construction of Hotel Alhambra.[26] The
corporate records allegedly reflected that the contractor, AAQ Sales and
Construction (AAQSC), was already paid in full yet Amy Albert Que of AAQSC
still filed a collection case against PRC for an unpaid balance.[27] In her
complaint-affidavit, Cristina averred:

11. That it was respondent Carmen J. Jalbuena, who took advantage of [her] signatures
in blank in DBP Check Nos. 0865590 and 0865591, and who filled up the spaces of the
payee, date and amount without the knowledge and consent of any officer of the
corporation and [herself], after which she caused the delivery of the same checks to her
husband Dennis Jalbuena, who encashed without [their] knowledge and consent, and
received the proceeds of the same checks (as evidenced by his signature in receipt of
payment on the dorsal side of the said checks) with the indispensable participation and
cooperation of respondent Vicente B. Delfin, the Asst. Vice President and Branch Head
of UCPB.[28]

Notably, in his comment, respondent stated:

There was a possibility of conflict of interest because by this time, or one

month before [he] filed [his] Motion to Withdraw, Mrs. Jalandoni /Penta Resorts
Corporation, Mr. Lim, through his wife, Cristina J. Lim, by another counsel, Atty.
Lorenzo S. Alminaza, filed a criminal complaint against the spouses Dennis and
Carmen J. Jalbuena on March 26, 1999 under BC-I.S. Case No. 99-2192.[29]

Similarly, in BC I.S. Nos. 00-1370, 2000-2304, 2000-2343, 00-2125, 00-

2230, 00-880, respondent positioned himself against PRCs interests.

And, in Civil Case No. 99-10660, a collection case against PRC, Atty.
Alminaza of PRC was alarmed by the appearance of respondent at the table in
court for AAQSCs counsel.[30]

Canon 15 of the Code of Professional Responsibility (CPR) highlights the need

for candor, fairness and loyalty in all the dealings of lawyers with their clients.
Rule 15.03 of the CPR aptly provides:

Rule 15.03 A lawyer shall not represent conflicting interests except by written consent of
all concerned given after a full disclosure of the facts.

It is only upon strict compliance with the condition of full disclosure of

facts that a lawyer may appear against his client; otherwise, his representation
of conflicting interests is reprehensible.[31] Conflict of interest may be
determined in this manner:
There is representation of conflicting interests if the acceptance of the new retainer
will require the attorney to do anything which will injuriously affect his first client
in any matter in which he represents him and also whether he will be called upon in his
new relation, to use against his first client any knowledge acquired through their
connection.[32] (emphasis ours)

The rule on conflict of interests covers not only cases in which confidential
communications have been confided but also those in which no confidence has
been bestowed or will be used.[33]

Another test of the inconsistency of interests is whether the acceptance of a new

relation will prevent an attorney from the full discharge of his duty of undivided fidelity
and loyalty to his client or invite suspicion of unfaithfulness or double-dealing in the
performance thereof, and also whether he will be called upon in his new relation to use
against his first client any knowledge acquire in the previous employment. The first part
of the rule refers to cases in which the opposing parties are present clients either in the
same action or in a totally unrelated case; the second part pertains to those in which
the adverse party against whom the attorney appears is his former client in a matter
which is related, directly or indirectly, to the present controversy.[34] (emphasis ours)

The rule prohibits a lawyer from representing new clients whose interests
oppose those of a former client in any manner, whether or not they are parties
in the same action or in totally unrelated cases. The cases here directly or
indirectly involved the parties connection to PRC, even if neither PRC nor
Lumot A. Jalandoni was specifically named as party-litigant in some of the
cases mentioned.

An attorney owes to his client undivided allegiance. After being retained and receiving
the confidences of the client, he cannot, without the free and intelligent consent of his
client, act both for his client and for one whose interest is adverse to, or conflicting with
that of his client in the same general matter. The prohibition stands even if the
adverse interest is very slight; neither is it material that the intention and motive
of the attorney may have been honest.[35] (emphasis ours)

The representation by a lawyer of conflicting interests, in the absence of the

written consent of all parties concerned after a full disclosure of the facts,
constitutes professional misconduct which subjects the lawyer to disciplinary
action.[36]
Even respondents alleged effort to settle the existing controversy among the
family members[37] was improper because the written consent of all concerned
was still required.[38] A lawyer who acts as such in settling a dispute cannot
represent any of the parties to it.[39]

WITHDRAWAL AS COUNSEL IN CIVIL CASE NO. 97-9865

The next bone of contention was the propriety of respondents withdrawal

as counsel for Lumot A. Jalandoni in Civil Case No. 97-9865 to fulfill an alleged
retainership agreement with the spouses Jalbuena in a suit by PRC, through
Cristina Lim, against the Jalbuenas and Delfin (BC I.S. No. 99-2192). In his
December 1, 2000 comment, respondent stated that it was he who was not
notified of the hiring of Atty. Alminaza as the new counsel in that case and that
he withdrew from the case with the knowledge of Lumot A. Jalandoni and with
leave of court.

The rule on termination of attorney-client relations may be summarized as

follows:

The relation of attorney and client may be terminated by the client, by the lawyer or by
the court, or by reason of circumstances beyond the control of the client or the
lawyer.The termination of the attorney-client relationship entails certain duties on the
part of the client and his lawyer.[40]

Accordingly, it has been held that the right of an attorney to withdraw or

terminate the relation other than for sufficient cause is considerably
restricted. Canon 22 of the CPR reads:

Canon 22 A lawyer shall withdraw his services only for good cause and upon notice
appropriate in the circumstances.

An attorney may only retire from a case either by written consent of his client
or by permission of the court after due notice and hearing, in which event the
attorney should see to it that the name of the new lawyer is recorded in the
case.[41] A lawyer who desires to retire from an action without the written
consent of his client must file a petition for withdrawal in court.[42] He must
serve a copy of his petition upon his client and the adverse party at least three
days before the date set for hearing, otherwise the court may treat the
application as a mere scrap of paper.[43]Respondent made no such move. He
admitted that he withdrew as counsel on April 26, 1999, which withdrawal was
supposedly approved by the court on April 28, 1999. The conformity of Mrs.
Jalandoni was only presumed by Atty. Villarosa because of the appearance of
Atty. Alminaza in court, supposedly in his place.
[A client] may discharge his attorney at any time with or without cause and thereafter
employ another lawyer who may then enter his appearance. Thus, it has been held that
a client is free to change his counsel in a pending case and thereafter retain another
lawyer to represent him. That manner of changing a lawyer does not need the consent
of the lawyer to be dismissed. Nor does it require approval of the court. [44]

The appearance of Atty. Alminaza in fact was not even to substitute for
respondent but to act as additional counsel.[45] Mrs. Jalandonis conformity to
having an additional lawyer did not necessarily mean conformity to
respondents desire to withdraw as counsel. Respondents speculations on the
professional relationship of Atty. Alminaza and Mrs. Jalandoni find no support
in the records of this case.
Respondent should not have presumed that his motion to withdraw as
counsel[46] would be granted by the court. Yet, he stopped appearing as Mrs.
Jalandonis counsel beginning April 28, 1999, the first hearing date. No order
from the court was shown to have actually granted his motion for withdrawal.
Only an order dated June 4, 1999 had a semblance of granting his motion:

When this case was called for hearing Atty. Lorenzo Alminaza appeared for the
defendants considering that Atty. Nicanor Villarosa has already withdrawn his
appearance in this case which the Court considered it to be approved as it bears
the conformity of the defendants.[47] (emphasis ours)

That Mrs. Jalandoni continued with Atty. Alminazas professional engagement

on her behalf despite respondents withdrawal did not absolve the latter of the
consequences of his unprofessional conduct, specially in view of the conflicting
interests already discussed. Respondent himself stated that his withdrawal
from Civil Case No. 97-9865 was due to the possibility of a conflict of
interest.[48]

Be that as it may, the records do not support the claim that respondent
improperly collected P5,000 from petitioner. Undoubtedly, respondent provided
professional services to Lumot A. Jalandoni. Furthermore, there is no evidence
that the documents belonging to Mrs. Jalandoni were deliberately withheld.
The right of an attorney to retain possession of a clients documents, money or
other property which may have lawfully come into his possession in his
professional capacity, until his lawful fees and disbursements have been fully
paid, is well-established.[49]
Finally, we express our utter dismay with Lims apparent use of his wifes
community tax certificate number in his complaint for disbarment against
respondent.[50] This is not, however, the forum to discuss this lapse.
WHEREFORE, in view of the foregoing, respondent Atty. Nicanor V. Villarosa is
hereby found GUILTY of violating Canon 15 and Canon 22 of the Code of
Professional Responsibility and is SUSPENDED from the practice of law for one
 (1) year, effective upon receipt of this decision, with a STERN WARNING that a
repetition of the same or similar acts will be dealt with more severely.

Let a copy of this resolution be entered into the records of respondent and
furnished to the Office of the Clerk of Court, the Office of the Bar Confidant,
the Integrated Bar of the Philippines, and all courts in the Philippines, for their
information and guidance.
SO ORDERED.
FIRST DIVISION
[A.C. No. 5804. July 1, 2003]
BENEDICTO HORNILLA and ATTY. FEDERICO D. RICAFORT, complainants, vs. ATTY.
ERNESTO S. SALUNAT, respondent.
RESOLUTION
YNARES-SANTIAGO, J.:
On November 21, 1997, Benedicto Hornilla and Federico D. Ricafort filed an
administrative complaint[1] with the Integrated Bar of the Philippines (IBP) Commission
on Bar Discipline, against respondent Atty. Ernesto S. Salunat for illegal and unethical
practice and conflict of interest. They alleged that respondent is a member of the ASSA
Law and Associates, which was the retained counsel of the Philippine Public School
Teachers Association (PPSTA). Respondents brother, Aurelio S. Salunat, was a
member of the PPSTA Board which approved respondents engagement as retained
counsel of PPSTA.
Complainants, who are members of the PPSTA, filed an intra-corporate case
against its members of the Board of Directors for the terms 1992-1995 and 1995-1997
before the Securities and Exchange Commission, which was docketed as SEC Case
No. 05-97-5657, and a complaint before the Office of the Ombudsman, docketed as
OMB Case No. 0-97-0695, for unlawful spending and the undervalued sale of real
property of the PPSTA. Respondent entered his appearance as counsel for the PPSTA
Board members in the said cases.Complainants contend that respondent was guilty of
conflict of interest because he was engaged by the PPSTA, of which complainants were
members, and was being paid out of its corporate funds where complainants have
contributed. Despite being told by PPSTA members of the said conflict of interest,
respondent refused to withdraw his appearance in the said cases.
Moreover, complainants aver that respondent violated Rule 15.06[2] of the Code of
Professional Responsibility when he appeared at the meeting of the PPSTA Board and
assured its members that he will win the PPSTA cases.
In his Answer,[3] respondent stressed that he entered his appearance as counsel for
the PPSTA Board Members for and in behalf of the ASSA Law and Associates. As a
partner in the said law firm, he only filed a Manifestation of Extreme Urgency in OMB
Case No. 0-97-0695.[4] On the other hand, SEC Case No. 05-97-5657 was handled by
another partner of the firm, Atty. Agustin V. Agustin. Respondent claims that it was
complainant Atty. Ricafort who instigated, orchestrated and indiscriminately filed the
said cases against members of the PPSTA and its Board.
Respondent pointed out that his relationship to Aurelio S. Salunat was immaterial;
and that when he entered into the retainer contract with the PPSTA Board, he did so,
not in his individual capacity, but in representation of the ASSA Law Firm. He denied
that he ensured the victory of the PPSTA Board in the case he was handling. He merely
assured the Board that the truth will come out and that the case before the Ombudsman
will be dismissed for lack of jurisdiction, considering that respondents therein are not
public officials, but private employees.Anent the SEC case, respondent alleged that the
same was being handled by the law firm of Atty. Eduardo de Mesa, and not ASSA.
By way of Special and Affirmative Defenses, respondent averred that complainant
Atty. Ricafort was himself guilty of gross violation of his oath of office amounting to
gross misconduct, malpractice and unethical conduct for filing trumped-up charges
against him and Atty. De Mesa. Thus, he prayed that the complaint against him be
dismissed and, instead, complainant Ricafort be disciplined or disbarred.
The complainant was docketed as CBD Case No. 97-531 and referred to the IBP
Commission on Bar Discipline. After investigation, Commissioner Lydia A. Navarro
recommended that respondent be suspended from the practice of law for six (6)
months. The Board of Governors thereafter adopted Resolution No. XV-3003-230 dated
June 29, 2002, approving the report and recommendation of the Investigating
Commissioner.
Respondent filed with this Court a Motion for Reconsideration of the above
Resolution of the IBP Board of Governors.
The pertinent rule of the Code of Professional Responsibility provides:
RULE 15.03. A lawyer shall not represent conflicting interests except by written consent of all
concerned given after a full disclosure of the facts.
There is conflict of interest when a lawyer represents inconsistent interests of two or
more opposing parties. The test is whether or not in behalf of one client, it is the lawyers
duty to fight for an issue or claim, but it is his duty to oppose it for the other client. In
brief, if he argues for one client, this argument will be opposed by him when he argues
for the other client.[5]This rule covers not only cases in which confidential
communications have been confided, but also those in which no confidence has been
bestowed or will be used.[6] Also, there is conflict of interests if the acceptance of the
new retainer will require the attorney to perform an act which will injuriously affect his
first client in any matter in which he represents him and also whether he will be called
upon in his new relation to use against his first client any knowledge acquired through
their connection.[7] Another test of the inconsistency of interests is whether the
acceptance of a new relation will prevent an attorney from the full discharge of his duty
of undivided fidelity and loyalty to his client or invite suspicion of unfaithfulness or
double dealing in the performance thereof.[8]
In this jurisdiction, a corporations board of directors is understood to be that body
which (1) exercises all powers provided for under the Corporation Code; (2) conducts all
business of the corporation; and (3) controls and holds all property of the
corporation.[9] Its members have been characterized as trustees or directors clothed
with a fiduciary character.[10] It is clearly separate and distinct from the corporate entity
itself.
Where corporate directors have committed a breach of trust either by their
frauds, ultra vires acts, or negligence, and the corporation is unable or unwilling to
institute suit to remedy the wrong, a stockholder may sue on behalf of himself and other
stockholders and for the benefit of the corporation, to bring about a redress of the wrong
done directly to the corporation and indirectly to the stockholders.[11] This is what is
known as a derivative suit, and settled is the doctrine that in a derivative suit, the
corporation is the real party in interest while the stockholder filing suit for the
corporations behalf is only nominal party. The corporation should be included as a party
in the suit.[12]
Having thus laid a suitable foundation of the basic legal principles pertaining to
derivative suits, we come now to the threshold question: can a lawyer engaged by a
corporation defend members of the board of the same corporation in a derivative
suit? On this issue, the following disquisition is enlightening:
The possibility for conflict of interest here is universally recognized. Although early cases found
joint representation permissible where no conflict of interest was obvious, the emerging rule is
against dual representation in all derivative actions. Outside counsel must thus be retained to
represent one of the defendants. The cases and ethics opinions differ on whether there must be
separate representation from the outset or merely from the time the corporation seeks to take an
active role. Furthermore, this restriction on dual representation should not be waivable by
consent in the usual way; the corporation should be presumptively incapable of giving valid
consent.[13] (underscoring ours)
In other jurisdictions, the prevailing rule is that a situation wherein a lawyer
represents both the corporation and its assailed directors unavoidably gives rise to a
conflict of interest. The interest of the corporate client is paramount and should not be
influenced by any interest of the individual corporate officials. [14] The rulings in these
cases have persuasive effect upon us.After due deliberation on the wisdom of this
doctrine, we are sufficiently convinced that a lawyer engaged as counsel for a
corporation cannot represent members of the same corporations board of directors in a
derivative suit brought against them. To do so would be tantamount to representing
conflicting interests, which is prohibited by the Code of Professional Responsibility.
In the case at bar, the records show that SEC Case No. 05-97-5657,
entitled Philippine Public School Teachers Assn., Inc., et al. v. 1992-1995 Board of
Directors of the Philippine Public School Teachers Assn. (PPSTA), et al., was filed by
the PPSTA against its own Board of Directors. Respondent admits that the ASSA Law
Firm, of which he is the Managing Partner, was the retained counsel of PPSTA. Yet, he
appeared as counsel of record for the respondent Board of Directors in the said
case. Clearly, respondent was guilty of conflict of interest when he represented the
parties against whom his other client, the PPSTA, filed suit.
In his Answer, respondent argues that he only represented the Board of Directors in
OMB Case No. 0-97-0695. In the said case, he filed a Manifestation of Extreme
Urgency wherein he prayed for the dismissal of the complaint against his clients, the
individual Board Members. By filing the said pleading, he necessarily entered his
appearance therein.[15] Again, this constituted conflict of interests, considering that the
complaint in the Ombudsman, albeit in the name of the individual members of the
PPSTA, was brought in behalf of and to protect the interest of the corporation.
Therefore, respondent is guilty of representing conflicting interests. Considering
however, that this is his first offense, we find the penalty of suspension, recommended
in IBP Resolution No. XV-2002-230 dated June 29, 2002, to be too harsh. Instead, we
resolve to admonish respondent to observe a higher degree of fidelity in the practice of
his profession.
 ACCORDINGLY, respondent Atty. Ernesto Salunat is found GUILTY of
representing conflicting interests and is ADMONISHED to observe a higher degree of
fidelity in the practice of his profession. He is further WARNED that a repetition of the
same or similar acts will be dealt with more severely.
SO ORDERED.

EN BANC

NESTOR PEREZ , A.C. No. 6160

Complainant,
Present:

Panganiban, C.J.,
Puno,
Quisumbing,
Ynares-Santiago,
Sandoval-Gutierrez,
- versus - Carpio,
Austria-Martinez,
Corona,
Carpio-Morales,
Callejo, Sr.,
Azcuna,
Tinga,
Chico-Nazario, and
Garcia, JJ.
ATTY. DANILO DE LA TORRE,
Respondent. Promulgated:
March 30, 2006
x ---------------------------------------------------------------------------------------- x

DECISION

YNARES-SANTIAGO, J.:

In a letter-complaint[1] dated July 30, 2003 addressed to then Chief Justice Hilario G.
Davide, Jr., complainant Nestor Perez charged respondent Atty. Danilo de la Torre with
misconduct or conduct unbecoming of a lawyer for representing conflicting interests.

Perez alleged that he is the barangay captain of Binanuaanan, Calabanga, Camarines Sur;
that in December 2001, several suspects for murder and kidnapping for ransom, among them
Sonny Boy Ilo and Diego Avila, were apprehended and jailed by the police authorities; that
respondent went to the municipal building of Calabanga where Ilo and Avila were being detained
and made representations that he could secure their freedom if they sign the prepared
extrajudicial confessions; that unknown to the two accused, respondent was representing the
heirs of the murder victim; that on the strength of the extrajudicial confessions, cases were filed
against them, including herein complainant who was implicated in the extrajudicial confessions
as the mastermind in the criminal activities for which they were being charged.

Respondent denied the accusations against him. He explained that while being detained at
the Calabanga Municipal Police Jail, Avila sought his assistance in drafting an extrajudicial
confession regarding his involvement in the crimes of kidnapping for ransom, murder and
robbery. He advised Avila to inform his parents about his decision to make an extrajudicial
confession, apprised him of his constitutional rights and of the possibility that he might be
utilized as a state-witness.

Respondent claimed that when Ilo sought his assistance in executing his extrajudicial
confession, he conferred with Ilo in the presence of his parents; and only after he was convinced
that Ilo was not under undue compulsion did he assist the accused in executing the extrajudicial
confession.

The complaint was referred to the Integrated Bar of the Philippines (IBP) for
investigation, report and recommendation.[2] On August 16, 2005, the Investigating
Commissioner submitted his report with the following recommendation:

WHEREFORE, it is respectfully recommended that Atty. Danilo de la Torre

be suspended for one (1) year from the practice of the legal profession for violation of Rule
15.03 of the Code of Professional Responsibility.

RESPECTFULLY SUBMITTED.

The Board of Governors of the IBP modified the recommendation by increasing the
period of suspension to two years.

In finding the respondent guilty of representing conflicting interests, the Investigating

Commissioner opined that:

In administrative proceedings, the complainant has the burden of proving, by substantial

evidence, the allegations in his complaint. The complainant was able to prove by substantial
evidence his charge against Atty. de la Tor[r]e. The respondent admitted that his services as a
lawyer were retained by both Avila and Ilo. Perez was able to show that at the time that Atty. de
la Torre was representing the said two accused, he was also representing the interest of the
victims family. This was declared by the victims daughter, Vicky de Chavez, who testified
before Branch 63 of the Regional Trial Court of Camarines Sur that her family retained the
services of Atty. Danilo de la Torre to prosecute the case against her fathers killers. She even
admitted that she was present when Atty. de la Torre met with and advised Avila and Ilo on one
occasion. This is proof that the respondent consciously offered his services to Avila and Ilo
despite the fact that he was already representing the family of the two accuseds victim. It may
not even be improbable that respondent purposely offered to help the accused in order to further
his other clients interest. The respondent failed to deny these facts or offer competent evidence to
refute the said facts despite the ample opportunity given him.

Under Rule 15.03 of the Code of Professional Responsibility, a lawyer shall not represent
conflicting interests except by written consent of all concerned given after a full disclosure of the
facts. Respondent is therefore duty bound to refrain from representing two parties having
conflicting interests in a controversy. By doing precisely the foregoing, and without any proof
that he secured the written consent of both parties after explaining to them the existing conflict of
interest, respondent should be sanctioned.

We agree with the findings of the IBP except for the recommended penalty.

There is conflict of interests when a lawyer represents inconsistent interests of two or

more opposing parties. The test is whether or not in behalf of one client, it is the lawyers duty to
fight for an issue or claim, but it is his duty to oppose it for the other client. In brief, if he argues
for one client, this argument will be opposed by him when he argues for the other client. This
rule covers not only cases in which confidential communications have been confided, but also
those in which no confidence has been bestowed or will be used.[3]

There is a representation of conflicting interests if the acceptance of the new retainer will
require the attorney to do anything which will injuriously affect his first client in any matter in
which he represents him and also whether he will be called upon in his new relation, to use
against his first client any knowledge acquired through their connection.[4]

The prohibition against representing conflicting interest is founded on principles of

public policy and good taste. In the course of a lawyer-client relationship, the lawyer learns all
the facts connected with the clients case, including the weak and strong points of the case. The
nature of that relationship is, therefore, one of trust and confidence of the highest degree. It
behooves lawyers not only to keep inviolate the clients confidence, but also to avoid the
appearance of impropriety and double-dealing for only then can litigants be encouraged to
entrust their secrets to their lawyers, which is of paramount importance in the administration of
justice.[5]

To negate any culpability, respondent explained that he did not offer his legal services to
accused Avila and Ilo but it was the two accused who sought his assistance in executing their
extrajudicial confessions. Nonetheless, he acceded to their request to act as counsel after
apprising them of their constitutional rights and after being convinced that the accused were
under no compulsion to give their confession.

The excuse proferred by the respondent does not exonerate him from the clear violation
of Rule 15.03 of the Code of Professional Responsibility which prohibits a lawyer from
representing conflicting interests except by written consent of all concerned given after a full
disclosure of the facts.

As found by the IBP, at the time respondent was representing Avila and Ilo, two of the
accused in the murder of the victim Resurreccion Barrios, he was representing the family of the
murder victim. Clearly, his representation of opposing clients in the murder case invites
suspicion of double-dealing and infidelity to his clients.

What is unsettling is that respondent assisted in the execution by the two accused of their
confessions whereby they admitted their participation in various serious criminal offenses
knowing fully well that he was retained previously by the heirs of one of the
victims. Respondent, who presumably knows the intricacies of the law, should have exercised
his better judgment before conceding to accuseds choice of counsel. It did not cross his mind to
inhibit himself from acting as their counsel and instead, he even assisted them in executing the
extrajudicial confession.

Considering that this is respondents first infraction, disbarment as sought by the

complaint is deemed to be too severe. Under the present circumstances, we find that a suspension
from the practice of law for three years is warranted.

WHEREFORE, Atty. Danilo de la Torre is found GUILTY of violation of Rule 15.03

of the Code of Professional Responsibility for representing conflicting interests. He
is SUSPENDED for THREE YEARS from the practice of law, effective upon his receipt of this
Decision. He is WARNED that a repetition of the same or similar acts will be dealt with more
severely.

Let copies of this Decision be entered in the record of respondent and served on the IBP,
as well as on the Court Administrator who shall circulate it to all courts for their information and
guidance.

FIRST DIVISION

LETICIA GONZALES, A.C. No. 6836

Complainant,
Present:

PANGANIBAN, C.J., Chairman,

YNARES-SANTIAGO,
- versus - AUSTRIA-MARTINEZ,
CALLEJO, and
CHICO-NAZARIO, JJ.

Promulgated:
ATTY. MARCELINO CABUCANA,
Respondent. January 23, 2006

x-----------------------------------------------------------x
RESOLUTION

AUSTRIA-MARTINEZ, J.:

Before this Court is a complaint filed by Leticia Gonzales (Gonzales) praying that Atty. Marcelino
Cabucana, (respondent) be disbarred for representing conflicting interests.

On January 8, 2004, Gonzales filed a petition before the Integrated Bar of the Philippines (IBP)
alleging that: she was the complainant in a case for sum of money and damages filed before the
Municipal Trial Court in Cities (MTCC) of Santiago City, docketed as Civil Case No. 1-567 where
she was represented by the law firm CABUCANA, CABUCANA, DE GUZMAN AND CABUCANA
LAW OFFICE, with Atty. Edmar Cabucana handling the case and herein respondent as an
associate/partner; on February 26, 2001, a decision was rendered in the civil case ordering the
losing party to pay Gonzales the amount of P17,310.00 with interest and P6,000.00 as attorneys
fees; Sheriff Romeo Gatcheco, failed to fully implement the writ of execution issued in
connection with the judgment which prompted Gonzales to file a complaint against the said
sheriff with this Court; in September 2003, Sheriff Gatcheco and his wife went to the house of
Gonzales; they harassed Gonzales and asked her to execute an affidavit of desistance regarding
her complaint before this Court; Gonzales thereafter filed against the Gatchecos criminal cases
for trespass, grave threats, grave oral defamation, simple coercion and unjust vexation;
notwithstanding the pendency of Civil Case No. 1-567, where respondents law firm was still
representing Gonzales, herein respondent represented the Gatchecos in the cases filed by
Gonzales against the said spouses; respondent should be disbarred from the practice of law
since respondents acceptance of the cases of the Gatchecos violates the lawyer-client
relationship between complainant and respondents law firm and renders respondent liable
under the Code of Professional Responsibility (CPR) particularly Rules
10.01,[1] 13.01,[2] 15.02,[3] 15.03,[4] 21.01[5] and 21.02.[6]

On January 9, 2004, the IBP-Commission on Bar Discipline ordered Atty. Marcelino Cabucana,
Jr. to submit his Answer to the complaint.[7]

In his Answer, respondent averred: He never appeared and represented complainant in Civil
Case No. 1-567 since it was his brother, Atty. Edmar Cabucana who appeared and represented
Gonzales in said case. He admitted that he is representing Sheriff Gatcheco and his wife in the
cases filed against them but claimed that his appearance is pro bono and that the spouses
pleaded with him as no other counsel was willing to take their case. He entered his appearance
in good faith and opted to represent the spouses rather than leave them defenseless. When the
Gatchecos asked for his assistance, the spouses said that the cases filed against them by
Gonzales were merely instigated by a high ranking official who wanted to get even with them
for their refusal to testify in favor of the said official in another case. At first, respondent
declined to serve as counsel of the spouses as he too did not want to incur the ire of the high-
ranking official, but after realizing that he would be abdicating a sworn duty to delay no man for
money or malice, respondent entered his appearance as defense counsel of the spouses free of
any charge. Not long after, the present complaint was crafted against respondent which shows
that respondent is now the subject of a demolition job. The civil case filed by Gonzales where
respondents brother served as counsel is different and distinct from the criminal cases filed by
complainant against the Gatcheco spouses, thus, he did not violate any canon on legal ethics. [8]

Gonzales filed a Reply contending that the civil case handled by respondents brother is closely
connected with the cases of the Gatchecos which the respondent is handling; that the claim of
respondent that he is handling the cases of the spouses pro bono is not true since he has his
own agenda in offering his services to the spouses; and that the allegation that she is filing the
cases against the spouses because she is being used by a powerful person is not true since she
filed the said cases out of her own free will.[9]

The Commission on Bar Discipline of the IBP sent to the parties a Notice of Mandatory
Conference dated March 1, 2004.[10] On the scheduled conference, only a representative of
complainant appeared.[11] Commissioner Demaree Raval of the IBP-CBD then directed both
parties to file their respective verified position papers.[12]

Complainant filed a Memorandum reiterating her earlier assertions and added that respondent
prepared and notarized counter-affidavits of the Gatcheco spouses; that the high-ranking
official referred to by respondent is Judge Ruben Plata and the accusations of respondent
against the said judge is an attack against a brother in the profession which is a violation of the
CPR; and that respondent continues to use the name of De Guzman in their law firm despite the
fact that said partner has already been appointed as Assistant Prosecutor of Santiago City, again
in violation of the CPR.[13]

Respondent filed his Position Paper restating his allegations in his Answer.[14]
On August 23, 2004, Commissioner Wilfredo E.J.E. Reyes issued an Order notifying both parties
to appear before his office on October 28, 2004 for a clarificatory question regarding said
case.[15] On the said date, only respondent appeared[16] presenting a sworn affidavit executed
by Gonzales withdrawing her complaint against respondent. It reads:

SINUMPAANG SALAYSAY
TUNGKOL SA PAG-UURONG NG DEMANDA

Ako, si LETICIA GONZALES, nasa tamang edad, Pilipino, may asawa, at nakatira sa
Barangay Dubinan East, Santiago City, makaraang manumpa ayon sa batas ay nagsasabing:
Ako ang nagdedemanda o petitioner sa CBD Case No. 04-1186 na may pamagat na Leticia
Gonzales versus Atty. Marcelino C. Cabucana, Jr. na kasalukuyang nahaharap sa Commission on
Bar Discipline ng Integrated Bar of the Philippines

Ang pagkakahain ng naturang demanda ay nag-ugat sa di-pagkakaintindihan na namamagitan

sa akin at nina Mr. and Mrs. Romeo and Anita Gatcheco.
Dahil sa aking galit sa naturang mag-asawa, idinawit ko si Atty. Marcelino C. Cabucana, Jr. sa
sigalot na namamagitan sa akin at sa mag-asawang Gatcheco, gayong nalalaman ko na si Atty.
Marcelino C. Cabucana ay walang nalalaman sa naturang di pagkakaintindihan.

Makaraang pag-isipang mabuti ang paghain ko ng demanda kontra kay Atty. Marcelino C.
Cabucana, Jr., nakumbinsi ako na ang pagdedemanda ko kay Atty. Marcelino C. Cabucana, Jr. ay
isang malaking pagkakamali dahil siya ay walang kinalalaman (sic) sa di pagkakaintindihan
naming(sic) ng mag-asawang Gatcheco.

Si Atty. Marcelino C. Cabucana, Jr. ay di ko rin naging abogado sa Civil Case No. 1-567 (MTCC Br.
I Santiago City) na inihain ko kontra kay Eduardo Mangano.

Nais kong ituwid ang lahat kung kayat aking iniuurong ang naturang kasong inihain ko
kontra kay Atty. Marcelino C. Cabucana, Jr. at dahil dito ay hindi na ako interesado pang ituloy
and naturang kaso, at aking hinihiling sa kinauukulan na dismisin na ang naturang kaso.

Ginawa ko ang sinumpaang salaysay na ito upang patotohanan sa lahat ng nakasaad dito.[17]

Commissioner Reyes issued an Order dated October 28, 2004 requiring Gonzales to appear
before him on November 25, 2004, to affirm her statements and to be subject to clarificatory
questioning.[18] However, none of the parties appeared.[19] On February 17, 2005, only
respondent was present. Commissioner Reyes then considered the case as submitted for
resolution.[20]

On February 24, 2005, Commissioner Reyes submitted his Report and Recommendation,
portions of which are quoted hereunder:
The Undersigned Commissioner believes that the respondent made a mistake in the acceptance
of the administrative case of Romeo Gatcheco, however, the Commission (sic) believes that
there was no malice and bad faith in the said acceptance and this can be shown by the move of
the complainant to unilaterally withdraw the case which she filed against Atty. Marcelino C.
Cabucana, Jr. However, Atty. Cabucana is reminded to be more careful in the acceptance of
cases as conflict of interests might arise.

It is respectfully recommended that Atty. Marcelino C. Cabucana, Jr. (be) sternly warned and
reprimanded andadvised to be more circumspect and careful in accepting cases which might
result in conflict of interests.[21]
On June 25, 2005, a Resolution was passed by the Board of Governors of the IBP, to wit:

RESOLUTION NO. XVI-2005-153

CBD CASE NO. 03-1186
Leticia Gonzales vs.
Atty. Marcelino Cabucana, Jr.
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and
Recommendation of the Investigating Commissioner of the above-entitled case, herein made
part of this Resolution as Annex A; and, finding the recommendation fully supported by the
evidence on record and the applicable laws and rules, and considering that respondent made (a)
mistake in the acceptance of the administrative case of Romeo Gatcheco, Atty. Marcelino
Cabucana, Jr. is hereby WARNED and REPRIMANDED and advised to be more circumspect and
careful in accepting cases which might result in conflict of interests.[22]
Before going to the merits, let it be clarified that contrary to the report of Commissioner Reyes,
respondent did not only represent the Gatcheco spouses in the administrative case filed by
Gonzales against them. As respondent himself narrated in his Position Paper, he likewise acted
as their counsel in the criminal cases filed by Gonzales against them.[23]

With that settled, we find respondent guilty of violating Rule 15.03 of Canon 15 of the Code of
Professional Responsibility, to wit:

Rule 15.03 A lawyer shall not represent conflicting interest except by written consent of all
concerned given after a full disclosure of the facts.

It is well-settled that a lawyer is barred from representing conflicting interests except by

written consent of all concerned given after a full disclosure of the facts.[24] Such prohibition is
founded on principles of public policy and good taste as the nature of the lawyer-client
relations is one of trust and confidence of the highest degree. [25] Lawyers are expected not only
to keep inviolate the clients confidence, but also to avoid the appearance of treachery and
double-dealing for only then can litigants be encouraged to entrust their secrets to their
lawyers, which is of paramount importance in the administration of justice.[26]

One of the tests of inconsistency of interests is whether the acceptance of a new relation would
prevent the full discharge of the lawyers duty of undivided fidelity and loyalty to the client or
invite suspicion of unfaithfulness or double-dealing in the performance of that duty.[27]

As we expounded in the recent case of Quiambao vs. Bamba,[28]

The proscription against representation of conflicting interests applies to a situation

where the opposing parties are present clients in the same action or in an unrelated action. It is
of no moment that the lawyer would not be called upon to contend for one client that which
the lawyer has to oppose for the other client, or that there would be no occasion to use the
confidential information acquired from one to the disadvantage of the other as the two actions
are wholly unrelated. It is enough that the opposing parties in one case, one of whom would
lose the suit, are present clients and the nature or conditions of the lawyers respective
retainers with each of them would affect the performance of the duty of undivided fidelity to
both clients.[29]

The claim of respondent that there is no conflict of interests in this case, as the civil case handled
by their law firm where Gonzales is the complainant and the criminal cases filed by Gonzales
against the Gatcheco spouses are not related, has no merit. The representation of opposing clients
in said cases, though unrelated, constitutes conflict of interests or, at the very least, invites
suspicion of double-dealing which this Court cannot allow.[30]

Respondent further argued that it was his brother who represented Gonzales in the civil case and
not him, thus, there could be no conflict of interests. We do not agree. As respondent admitted, it
was their law firm which represented Gonzales in the civil case. Such being the case, the rule
against representing conflicting interests applies.

As we explained in the case of Hilado vs. David:[31]

[W]e can not sanction his taking up the cause of the adversary of the party who had
sought and obtained legal advice from his firm; this, not necessarily to prevent any injustice to
the plaintiff but to keep above reproach the honor and integrity of the courts and of the bar.
Without condemning the respondents conduct as dishonest, corrupt, or fraudulent, we do
believe that upon the admitted facts it is highly inexpedient. It had the tendency to bring the
profession, of which he is a distinguished member, into public disrepute and suspicion and
undermine the integrity of justice.[32]
The claim of respondent that he acted in good faith and with honest intention will also not
exculpate him as such claim does not render the prohibition inoperative.[33]
In the same manner, his claim that he could not turn down the spouses as no other lawyer is
willing to take their case cannot prosper as it is settled that while there may be instances where
lawyers cannot decline representation they cannot be made to labor under conflict of interest
between a present client and a prospective one.[34] Granting also that there really was no other
lawyer who could handle the spouses case other than him, still he should have observed the
requirements laid down by the rules by conferring with the prospective client to ascertain as soon
as practicable whether the matter would involve a conflict with another client then seek the
written consent of all concerned after a full disclosure of the facts.[35] These respondent failed to
do thus exposing himself to the charge of double-dealing.

We note the affidavit of desistance filed by Gonzales. However, we are not bound by such
desistance as the present case involves public interest.[36] Indeed, the Courts exercise of its power
to take cognizance of administrative cases against lawyers is not for the purpose of enforcing
civil remedies between parties, but to protect the court and the public against an attorney guilty
of unworthy practices in his profession.[37]

In similar cases where the respondent was found guilty of representing conflicting interests a
penalty ranging from one to three years suspension was imposed.[38]

We shall consider however as mitigating circumstances the fact that he is representing the
Gatcheco spouses pro bono and that it was his firm and not respondent personally, which
handled the civil case of Gonzales. As recounted by complainant herself, Atty. Edmar Cabucana
signed the civil case of complainant by stating first the name of the law firm CABUCANA,
CABUCANA, DE GUZMAN AND CABUCANA LAW OFFICE, under which, his name and
signature appear; while herein respondent signed the pleadings for the Gatcheco spouses only
with his name,[39] without any mention of the law firm. We also note the observation of the IBP
Commissioner Reyes that there was no malice and bad faith in respondents acceptance of the
Gatchecos cases as shown by the move of complainant to withdraw the case.

Thus, for violation of Rule 15.03, Canon 15 of the Code of Professional Responsibility and taking
into consideration the aforementioned mitigating circumstances, we impose the penalty of fine
of P2,000.00.

WHEREFORE, Resolution No. XVI-2005-153 of the Integrated Bar of the Philippines

is APPROVED with MODIFICATION that respondent Atty. Marcelino Cabucana, Jr.
is FINED the amount of Two Thousand Pesos (P2,000.00) with a STERN WARNING that a
commission of the same or similar act in the future shall be dealt with more severely.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
A.C. No. 7360 July 24,2012
ATTY. POLICARIO I. CATALAN, JR., Complainant,
vs.
ATTY. JOSELITO M. SILVOSA, Respondent.
DECISION
PER CURIAM:
This is a complaint filed by Atty. Policarpio I. Catalan, Jr. (Atty. Catalan) against Atty.
Joselito M. Silvosa (Atty. Silvosa). Atty. Catalan has three causes of action against Atty.
Silvosa; (1) Atty. Silvosa appeared as counsel for the accused in the same case for
which he previously appeared as prosecutor; (2) Atty. Silvosa bribed his then colleague
Prosecutor Phoebe Toribio (Pros.Toribio) for P30,000; and (3) the Sandiganbayan
convicted Atty. Silvosa in Criminal Case No. 27776 for direct bribery. Integrated Bar of
the Philippines’ (IBP) Commissioner for Bar Discipline Dennis A.B. Funa (Comm. Funa)
held Atty. Silvosa liable only for the first cause of action and recommended the penalty
of reprimand. The Board of Governors of the IBP twice modified Comm. Funa’s
recommendation: first, to a suspension of six months, then to a suspension of two
years.
Atty. Silvosa was an Assistant Provincial Prosecutor of Bukidnon and a Prosecutor in
Regional Trial Court (RTC), Branch 10, Malaybalay City, Bukidnon. Atty. Silvosa
appeared as public prosecutor in Criminal Case No. 10256-00, "People of the
Philippines v. SPO2 Elmor Esperon y Murillo, et al." (Esperon case), for the complex
crime of double frustrated murder, in which case Atty. Catalan was one of the private
complainants. Atty. Catalan took issue with Atty. Silvosa’s manner of prosecuting the
case, and requested the Provincial Prosecutor to relieve Atty. Silvosa.
In his first cause of action, Atty. Catalan accused Atty. Silvosa of appearing as private
counsel in a case where he previously appeared as public prosecutor, hence violating
Rule 6.03 of the Code of Professional Responsibility.1 Atty. Catalan also alleged that,
apart from the fact that Atty. Silvosa and the accused are relatives and have the same
middle name, Atty. Silvosa displayed manifest bias in the accused’s favor. Atty. Silvosa
caused numerous delays in the trial of the Esperon case by arguing against the position
of the private prosecutor. In 2000, Provincial Prosecutor Guillermo Ching granted Atty.
Catalan’s request to relieve Atty. Silvosa from handling the Esperon case. The RTC
rendered judgment convicting the accused on 16 November 2005. On 23 November
2005, Atty. Silvosa, as private lawyer and as counsel for the accused, filed a motion to
reinstate bail pending finality of judgment of the Esperon case.
In his second cause of action, Atty. Catalan presented the affidavit of Pros. Toribio. In a
case for frustrated murder where Atty. Catalan’s brother was a respondent, Pros.
Toribio reviewed the findings of the investigating judge and downgraded the offense
from frustrated murder to less serious physical injuries. During the hearing before
Comm. Funa, Pros. Toribio testified that, while still a public prosecutor at the time, Atty.
Silvosa offered her P30,000 to reconsider her findings and uphold the charge of
frustrated murder.
Finally, in the third cause of action, Atty. Catalan presented the Sandiganbayan’s
decision in Criminal Case No. 27776, convicting Atty. Silvosa of direct bribery on 18
May 2006. Nilo Lanticse (Lanticse) filed a complaint against Atty. Silvosa before the
National Bureau of Investigation (NBI). Despite the execution of an affidavit of
desistance by the complainant in a homicide case in favor of Lanticse’s father-in-law,
Arsenio Cadinas (Cadinas), Cadinas still remained in detention for more than two years.
Atty. Silvosa demanded P15,000 from Lanticse for the dismissal of the case and for the
release of Cadinas. The NBI set up an entrapment operation for Atty. Silvosa. GMA 7’s
television program Imbestigador videotaped and aired the actual entrapment operation.
The footage was offered and admitted as evidence, and viewed by the Sandiganbayan.
Despite Atty. Silvosa’s defense of instigation, the Sandiganbayan convicted Atty.
Silvosa. The dispositive portion of Criminal Case No. 27776 reads:
WHEREFORE, this court finds JOSELITO M. SILVOSA GUILTY, beyond reasonable
doubt, of the crime of direct bribery and is hereby sentenced to suffer the penalty of:
(A) Imprisonment of, after applying the Indeterminate Sentence Law, one year, one
month and eleven days of prision correccional, as minimum, up to three years, six
months and twenty days of prision correccional, as maximum;
(B) Fine of TEN THOUSAND PESOS (Php 10,000.00), with subsidiary imprisonment in
case of insolvency; and
(C) All other accessory penalties provided for under the law.
SO ORDERED.2
In his defense, on the first cause of action, Atty. Silvosa states that he resigned as
prosecutor from the Esperon case on 18 October 2002. The trial court released its
decision in the Esperon case on 16 November 2005 and cancelled the accused’s bail.
Atty. Silvosa claims that his appearance was only for the purpose of the reinstatement
of bail. Atty. Silvosa also denies any relationship between himself and the accused.
On the second cause of action, Atty. Silvosa dismisses Pros. Toribio’s allegations as
"self-serving" and "purposely dug by [Atty. Catalan] and his puppeteer to pursue
persecution."
On the third cause of action, while Atty. Silvosa admits his conviction by the
Sandiganbayan and is under probation, he asserts that "conviction under the 2nd
paragraph of Article 210 of the Revised Penal Code, do [sic] not involve moral turpitude
since the act involved ‘do [sic] not amount to a crime.’" He further claims that "it is not
the lawyer in respondent that was convicted, but his capacity as a public officer, the
charge against respondent for which he was convicted falling under the category of
crimes against public officers x x x."
In a Report and Recommendation dated 15 September 2008, Comm. Funa found that:
As for the first charge, the wordings and prohibition in Rule 6.03 of the Code of
Professional Responsibility [are] quite clear. [Atty. Silvosa] did intervene in Criminal
Case No. 10246-00. [Atty. Silvosa’s] attempt to minimize his role in said case would be
unavailing. The fact is that he is presumed to have acquainted himself with the facts of
said case and has made himself familiar with the parties of the case. Such would
constitute sufficient intervention in the case. The fact that, subsequently, [Atty. Silvosa]
entered his appearance in said case only to file a Motion to
Post Bail Bond Pending Appeal would still constitute a violation of Rule 6.03 as such act
is sufficient to establish a lawyer-client relation.
As for the second charge, there is certain difficulty to dissect a claim of bribery that
occurred more than seven (7) years ago. In this instance, the conflicting allegations are
merely based on the word of one person against the word of another. With [Atty.
Silvosa’s] vehement denial, the accusation of witness [Pros.] Toribio stands alone
unsubstantiated. Moreover, we take note that the alleged incident occurred more than
seven (7) years ago or in 1999, [l]ong before this disbarment case was filed on
November 2006. Such a long period of time would undoubtedly cast doubt on the
veracity of the allegation. Even the existence of the bribe money could not be
ascertained and verified with certainty anymore.
As to the third charge, [Atty. Silvosa] correctly points out that herein complainant has no
personal knowledge about the charge of extortion for which [Atty. Silvosa] was
convicted by the Sandiganbayan. [Atty. Catalan] was not a party in said case nor was
he ever involved in said case. The findings of the Sandiganbayan are not binding upon
this Commission. The findings in a criminal proceeding are not binding in a disbarment
proceeding. No evidence has been presented relating to the alleged extortion case.
PREMISES CONSIDERED, it is submitted that [Atty. Silvosa] is GUILTY only of the
First Charge in violating Rule 6.03 of the Code of Professional Responsibility and
should be given the penalty of REPRIMAND.
Respectfully submitted.3
In a Resolution dated 9 October 2008, the IBP Board of Governors adopted and
approved with modification the Report and Recommendation of Comm. Funa and
suspended Atty. Silvosa from the practice of law for six months. In another Resolution
dated 28 October 2011, the IBP Board of Governors increased the penalty of Atty.
Silvosa’s suspension from the practice of law to two years. The Office of the Bar
Confidant received the notice of the Resolution and the records of the case on 1 March
2012.
We sustain the findings of the IBP only in the first cause of action and modify its
recommendations in the second and third causes of action.
Atty. Catalan relies on Rule 6.03 which states that "A lawyer shall not, after leaving
government service, accept engagement or employment in connection with any matter
in which he had intervened while in said service." Atty. Silvosa, on the hand, relies on
Rule 2.01 which provides that "A lawyer shall not reject, except for valid reasons the
cause of the defenseless or the oppressed" and on Canon 14 which provides that "A
lawyer shall not refuse his services to the needy."
We agree with Comm. Funa’s finding that Atty. Silvosa violated Rule 6.03. When he
entered his appearance on the Motion to Post Bail Bond Pending Appeal, Atty. Silvosa
conveniently forgot Rule 15.03 which provides that "A lawyer shall not represent
conflicting interests except by written consent of all concerned given after a full
disclosure of facts."
Atty. Silvosa’s attempts to minimize his involvement in the same case on two occasions
can only be described as desperate. He claims his participation as public prosecutor
was only to appear in the arraignment and in the pre-trial conference. He likewise
claims his subsequent participation as collaborating counsel was limited only to the
reinstatement of the original bail. Atty. Silvosa will do well to take heed of our ruling in
Hilado v. David:4
An attorney is employed — that is, he is engaged in his professional capacity as a
lawyer or counselor — when he is listening to his client’s preliminary statement of his
case, or when he is giving advice thereon, just as truly as when he is drawing his
client’s pleadings, or advocating his client’s pleadings, or advocating his client’s cause
in open court.
xxxx
Hence the necessity of setting down the existence of the bare relationship of attorney
and client as the yardstick for testing incompatibility of interests. This stern rule is
designed not alone to prevent the dishonest practitioner from fraudulent conduct, but as
well to protect the honest lawyer from unfounded suspicion of unprofessional practice. It
is founded on principles of public policy, on good taste. As has been said in another
case, the question is not necessarily one of the rights of the parties, but as to whether
the attorney has adhered to proper professional standard. With these thoughts in mind,
it behooves attorneys, like Caesar’s wife, not only to keep inviolate the client’s
confidence, but also to avoid the appearance of treachery and double-dealing. Only
thus can litigants be encouraged to entrust their secrets to their attorneys which is of
paramount importance in the administration of justice.
Indeed, the prohibition against representation of conflicting interests applies although
the attorney’s intentions were honest and he acted in good faith. 5
Atty. Silvosa denies Pros. Toribio’s accusation of bribery and casts doubt on its veracity
by emphasizing the delay in presenting a complaint before the IBP. Comm. Funa, by
stating that there is difficulty in ascertaining the veracity of the facts with certainty, in
effect agreed with Atty. Silvosa. Contrary to Comm. Funa’s ruling, however, the records
show that Atty. Silvosa made an attempt to bribe Pros. Toribio and failed. Pros. Toribio
executed her affidavit on 14 June 1999, a day after the failed bribery attempt, and had it
notarized by Atty. Nemesio Beltran, then President of the IBP-Bukidnon Chapter. There
was no reason for Pros. Toribio to make false testimonies against Atty. Silvosa. Atty.
Silvosa, on the other hand, merely denied the accusation and dismissed it as
persecution. When the integrity of a member of the bar is challenged, it is not enough
that he denies the charges against him. He must meet the issue and overcome the
evidence against him. He must show proof that he still maintains that degree of morality
and integrity which at all times is expected of him.6 Atty. Silvosa failed in this respect.
Unfortunately for Atty. Silvosa, mere delay in the filing of an administrative complaint
against a member of the bar does not automatically exonerate a respondent.
Administrative offenses do not prescribe. 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.7
We disagree with Comm. Funa’s ruling that the findings in a criminal proceeding are not
binding in a disbarment proceeding.
First, disbarment proceedings may be initiated by any interested person. There can be
no doubt of the right of a citizen to bring to the attention of the proper authority acts and
doings of public officers which a citizen feels are incompatible with the duties of the
office and from which conduct the public might or does suffer undesirable
consequences.8 Section 1, Rule 139-B reads:
Section 1. How Instituted. – Proceedings for the disbarment, suspension, or discipline of
attorneys may be taken by the Supreme Court motu proprio, or by the Integrated Bar of
the Philippines (IBP) upon the verified complaint of any person. The complaint shall
state clearly and concisely the facts complained of and shall be supported by affidavits
of persons having personal knowledge of the facts therein alleged and/or by such
documents as may substantiate said facts.
The IBP Board of Governors may, motu proprio or upon referral by the Supreme Court
or by a Chapter Board of Officers, or at the instance of any person, initiate and
prosecute proper charges against erring attorneys including those in government
service.
xxxx
It is of no moment that Atty. Catalan is not the complainant in Criminal Case No. 27776,
and that Lanticse, the complainant therein, was not presented as a witness in the
present case. There is no doubt that the Sandiganbayan’s judgment in Criminal Case
No. 27776 is a matter of public record and is already final. Atty. Catalan supported his
allegation by submitting documentary evidence of the Sandiganbayan’s decision in
Criminal Case No. 27776. Atty. Silvosa himself admitted, against his interest, that he is
under probation.
Second, conviction of a crime involving moral turpitude is a ground for disbarment.
Moral turpitude is defined as an act of baseness, vileness, or depravity in the private
duties which a man owes to his fellow men, or to society in general, contrary to justice,
honesty, modesty, or good morals.9 Section 27, Rule 138 provides:
Section 27. Disbarment or suspension of attorneys by Supreme Court; grounds therefor.
– A member of the bar may be disbarred or suspended from his office as attorney by
the Supreme Court for any deceit, malpractice, or other gross misconduct in such office,
grossly immoral conduct, or by reason of his conviction of a crime involving moral
turpitude, or for any violation of the oath which he is required to take before admission
to practice, or for a willful disobedience of any lawful order of a superior court, or for
corruptly or willfully appearing as an attorney for a party to a case without authority so to
do. The practice of soliciting cases at law for the purpose of gain, either personally or
through paid agents or brokers, constitutes malpractice. (Emphasis supplied)
In a disbarment case, this Court will no longer review a final judgment of conviction. 10
Third, the crime of direct bribery is a crime involving moral turpitude. In Magno v.
COMELEC,11
we ruled:
By applying for probation, petitioner in effect admitted all the elements of the crime of
direct bribery:
1. the offender is a public officer;
2. the offender accepts an offer or promise or receives a gift or present by himself or
through another;
3. such offer or promise be accepted or gift or present be received by the public officer
with a view to committing some crime, or in consideration of the execution of an act
which does not constitute a crime but the act must be unjust, or to refrain from doing
something which it is his official duty to do; and
4. the act which the offender agrees to perform or which he executes is connected with
the performance of his official duties.
Moral turpitude can be inferred from the third element. The fact that the offender agrees
to accept a promise or gift and deliberately commits an unjust act or refrains from
performing an official duty in exchange for some favors, denotes a malicious intent on
the part of the offender to renege on the duties which he owes his fellowmen and
society in general. Also, the fact that the offender takes advantage of his office and
position is a betrayal of the trust reposed on him by the public. It is a conduct clearly
contrary to the accepted rules of right and duty, justice, honesty and good morals. In all
respects, direct bribery is a crime involving moral turpitude. (Italicization in the original)
Atty. Silvosa’s representation of conflicting interests and his failed attempt at bribing
Pros. Toribio merit at least the penalty of suspension.1âwphi1 Atty. Silvosa’s final
conviction of the crime of direct bribery clearly falls under one of the grounds for
disbarment under Section 27 of Rule 138. Disbarment follows as a consequence of Atty.
Silvosa’s conviction of the crime. We are constrained to impose a penalty more severe
than suspension because we find that Atty. Silvosa is predisposed to flout the exacting
standards of morality and decency required of a member of the Bar. His excuse that his
conviction was not in his capacity as a lawyer, but as a public officer, is unacceptable
and betrays the unmistakable lack of integrity in his character. The practice of law is a
privilege, and Atty. Silvosa has proved himself unfit to exercise this privilege.
WHEREFORE, respondent Atty. Joselito M. Silvosa is hereby DISBARRED and his
name ORDERED STRICKEN from the Roll of Attorneys. Let a copy of this Decision be
furnished to the Office of the Bar Confidant, to be appended to respondent’s personal
record as attorney. Likewise, copies shall be furnished to the Integrated Bar of the
Philippines and to the Office of the Court Administration for circulation to all courts in the
country.
SO ORDERED.
 FIRST DIVISION
[A.C. No. 4354. April 22, 2002]
LOLITA ARTEZUELA, complainant, vs. ATTY. RICARTE B. MADERAZO, respondent.
DECISION
PUNO, J.:
For his failure to meet the exacting standards of professional ethics, the Board of Governors
of the Integrated Bar of the Philippines (IBP) in its Resolution of May 2, 2000 recommended the
suspension from the practice of law of respondent Atty. Ricarte B. Maderazo for the period of six
(6) months, with a stern warning that repetition of the same act will be dealt with more severely.
Respondent allegedly represented conflicting interests in violation of Canon 6 of the Code of
Professional Ethics, and Canon 15 and Rule 15.03 of the Code of Professional Responsibility.[1]
By way of a Motion for Reconsideration,[2] respondent now comes before this Court to
challenge the basis of the IBPs resolution, and prays for its reversal.
The factual antecedents of the case are as follows: On or about 3:00 in the early morning of
December 24, 1992, Allan Echavia had a vehicular accident at Caduman St., corner H. Abellana
St., Mandaue City. At the time of the accident, Echavia was driving a Ford Telstar car owned by
a Japanese national named Hirometsi Kiyami, but was registered in the name of his brother-in-
law, Jun Anthony Villapez. The car rammed into a small carinderia owned by complainant
Lolita Artezuela.[3]
The destruction of the complainants carinderia caused the cessation of the operation of her
small business, resulting to her financial dislocation. She incurred debts from her relatives and
due to financial constraints, stopped sending her two children to college.[4]
Complainant engaged the services of the respondent in filing a damage suit against Echavia,
Villapez and one Bernardo Sia.[5] Docketed as Civil Case No. 13666, the case was assigned to
Branch 14 of the Regional Trial Court of Cebu. An Amended Complaint was thereafter filed,
impleading Echavia, Kiyami and Villapez, and dropping Sia as a party-defendant.[6] For his
services, complainant paid the respondent the amount of Ten Thousand Pesos (P10, 000.00) as
attorneys fees and Two Thousand Pesos (P2,000.00) as filing fee.[7] However, the case was
dismissed on March 22, 1994, allegedly upon the instance of the complainant and her husband.[8]
Because of the dismissal of Civil Case No. 13666, complainant filed a civil case for
damages against the respondent. It was docketed as CEB-18552 and assigned to Branch 57,
Regional Trial Court of Cebu City. The case was dismissed on June 12, 2001.[9]
On November 24, 1994, Artezuela filed before this Court a verified complaint for
disbarment against the respondent. She alleged that respondent grossly neglected his duties as a
lawyer and failed to represent her interests with zeal and enthusiasm. According to her, when
Civil Case No. 13666 was scheduled for pre-trial conference on August 20, 1993, respondent
asked for its postponement although all the parties were present. Notwithstanding complainants
persistent and repeated follow-up, respondent did not do anything to keep the case moving. He
withdrew as counsel without obtaining complainants consent.[10]
Complainant also claimed that respondent engaged in activities inimical to her interests.
While acting as her counsel, respondent prepared Echavias Answer to the Amended Complaint.
The said document was even printed in respondents office. Complainant further averred that it
was respondent who sought the dismissal of the case, misleading the trial court into thinking that
the dismissal was with her consent.[11]
 Respondent denied the complainants allegations and averred that he conscientiously did his
part as the complainants lawyer in Civil Case No. 13666. He withdrew as counsel because the
complainant was uncooperative and refused to confer with him. He also gave several notices to
the complainant and made known his intention before he filed his Manifestation to withdraw as
counsel. Because of the severed relationship, the lower court, after holding a conference, decided
to grant respondents manifestation and advised the complainant to secure the services of a new
lawyer. Complainant, however, refused and instead, sought the dismissal of the case.[12]
Respondent alleged that he sought the postponement of the Pre-Trial Conference scheduled
on August 20, 1993 so that he could file the Amended Complaint. He admitted that Echavias
Answer to the Amended Complaint was printed in his office but denied having prepared the
document and having acted as counsel of Echavia. He claimed that complainant requested him to
prepare Echavias Answer but he declined. Echavia, however, went back to his office and asked
respondents secretary to print the document. Respondent intimated that the complainant and
Echavia have fabricated the accusations against him to compel him to pay the amount
of P500,000.00.[13]
This Court referred the complaint to the Integrated Bar of the Philippines (IBP). The IBP-
Visayas Regional Committee on Bar Discipline formed an Investigating Committee to hear the
disbarment complaint.
On October 6, 1999, Commissioner Gabriel T. Ingles issued a Report finding the respondent
guilty of representing conflicting interests, in violation of Canon 15 and Rule 15.03 of the Code
of Professional Responsibility, as well as, of Canon 6 of the Code of Professional Ethics. He
recommended that the respondent be suspended from the practice of law for a period of one (1)
year.[14]Commissioner Ingles did not rule on the other issues.
As aforesaid, the Board of Governors of the Integrated Bar of the Philippines upheld the
findings of the Committee with modification only as to the penalty.
Seeking reconsideration of the IBPs resolution, respondent contends that the Investigating
Committee did not conduct trial; hence, he was not able to confront and examine the witnesses
against him. He argues that the Investigating Committees finding that he represented Echavia is
contrary to court records and the complainants own testimony in CEB-18552. He also casts
doubt on the credibility of the Investigating Committee to render just and fair recommendations
considering that the Investigating Commissioner and the respondent are counsel-adversaries in
another case, Civil Case No. R-33277. Finally, he questions the imposition of a six-month
suspension, which he claims to be harsh considering that his private practice is his only source of
income.[15]
After carefully examining the records, as well as the applicable laws and jurisprudence on
the matter, this Court is inclined to uphold the IBPs resolution.
In administrative cases, the requirement of notice and hearing does not connote full
adversarial proceedings, as actual adversarial proceedings become necessary only for
clarification or when there is a need to propound searching questions to witnesses who give
vague testimonies.[16] Due process is fulfilled when the parties were given reasonable
opportunity to be heard and to submit evidence in support of their arguments.[17]
In the case at bar, records show that respondent repeatedly sought the postponement of the
hearings, prompting the Investigating Commissioner to receive complainants evidence ex
parte and to set the case for resolution after the parties have submitted their respective
memorandum. Hence:
 The records show that this is already the third postponement filed by respondent namely
December 12, 1996 (sic), January 3, 1996 and April 1, 1996.
The Commission for the last time, will cancel todays hearing and can no longer tolerate any
further postponement. Notify respondent by telegram for the hearing for (sic) April 22, 1996 at
2:00 P.M. Said hearing is intransferable in character.
In the meantime, complainant affirmed her complaint and likewise her witness, Allan Echavia,
also affirmed the contents of his affidavit and further stated that he had executed the same and
understood the contents thereof.[18]
It is by his own negligence that the respondent was deemed to have waived his right to
cross-examine the complainant and her witness. He cannot belatedly ask this Court to grant new
trial after he has squandered his opportunity to exercise his right.
Respondents contention that the finding of the Investigating Committee was contrary to the
records and the complainants own admission in CEB-18552 is without merit. It is true that Atty.
Aviola was Echavias counsel-of-record in Civil Case No. 13666 as evidenced by the certification
from the clerk of court,[19] and as admitted by the complainant in CEB-18552, viz:
ATTY. MADERAZO: (To witness- ON CROSS)
Q: Madam witness, you mentioned that the defendant in this case was the counsel of Allan Echavia
as early as August 20, 1993, wherein you learned for the first time of this fact when you say he is
counsel of Allan Echavia. (sic) You mean he is the counsel of record of Allan Echavia in the
Civil Case before Judge Dacudao? Is that what you mean?
A: What I learned was that Atty. Alviola was the counsel of Allan Echavia in the case before Judge
Dacudao but I heard Atty. Maderazo telling Allan Echavia not to admit that Atty. Maderazo is
appearing for me because he will be the one to coordinate with Allans case.
Q: So it is clear that the defendant in this case is not the counsel of record of Allan Echavia. It was
Atty. Alviola stated by you now?
A: Atty. Maderazo was not Allan Echavias counsel but it was Atty. Alviola who was the counsel of
record of Allan Echavia.[20]
Nevertheless, the issue in this case is not whether the respondent also acted as the counsel-
of-record of Echavia. Rather, it is whether or not he had a direct hand in the preparation of
Echavias Answer to the Amended Complaint.
To be guilty of representing conflicting interests, a counsel-of-record of one party need not
also be counsel-of-record of the adverse party. He does not have to publicly hold himself as the
counsel of the adverse party, nor make his efforts to advance the adverse partys conflicting
interests of record--- although these circumstances are the most obvious and satisfactory proof of
the charge. It is enough that the counsel of one party had a hand in the preparation of the
pleading of the other party, claiming adverse and conflicting interests with that of his original
client. To require that he also be counsel-of-record of the adverse party would punish only the
most obvious form of deceit and reward, with impunity, the highest form of disloyalty.
Canon 6 of the Code of Professional Ethics states:
It is the duty of a lawyer at the time of the retainer to disclose to the client the circumstances of
his relations to the parties and any interest in or in connection with the controversy, which might
influence the client in the selection of the counsel.
It is unprofessional to represent conflicting interests, except by express consent of all concerned
given after a full disclosure of the facts. Within the meaning of this Canon, a lawyer represents
conflicting interests when in behalf of one of the clients, it is his duty to contend for that
which duty to another client requires him to oppose. (emphasis supplied)
 An attorney owes his client undivided allegiance. Because of the highly fiduciary nature of
the attorney-client relationship, sound public policy dictates that a lawyer be prohibited from
representing conflicting interests or discharging inconsistent duties. He may not, without being
guilty of professional misconduct, act as counsel for a person whose interest conflicts with that
of his present or former client. Indeed, good faith and honest intention on the part of the erring
lawyer does not make this rule inoperative.[21] The lawyer is an officer of the court and his
actions are governed by the uncompromising rules of professional ethics. Thus:
The relations of attorney and client is founded on principles of public policy, on good taste. The
question is not necessarily one of the rights of the parties, but as to whether the attorney has
adhered to proper professional standard. With these thoughts in mind, it behooves attorneys, like
Ceasars wife, not only to keep inviolate the clients confidence, but also to avoid the appearance
of treachery and double-dealing. Only thus can litigants be encouraged to entrust their secrets to
their attorneys which is of paramount importance in the administration of justice.[22]
The professional obligation of the lawyer to give his undivided attention and zeal for his
clients cause is likewise demanded in the Code of Professional Responsibility. Inherently
disadvantageous to his clients cause, representation by the lawyer of conflicting interests requires
disclosure of all facts and consent of all the parties involved. Thus:
CANON 15- All lawyers shall observe candor, fairness and loyalty in all his dealings and
transactions with his clients.
xxx
Rule 15.03- A lawyer shall not represent conflicting interests except by written consent of all
concerned given after a full disclosure of the facts.
While the Resolution of the IBP is purely recommendatory, we find no reason to reverse the
same. In disciplinary proceedings against members of the bar, only clear preponderance of
evidence is required to establish liability. As long as the evidence presented by complainant or
that taken judicial notice of by the Court is more convincing and worthy of belief than that which
is offered in opposition thereto, the imposition of disciplinary sanction is justified.[23]
A perusal of Echavias Answer to the Amended Complaint shows that it indeed conflicts
with the complainants claims. It reads:
1. The allegations (sic) in Paragraph One (1) of the Complaint is admitted in so far as it pertains
to the personal circumstance and residence of the answering defendant. The rest of the
allegations in Paragraph One (1), and all the allegations in Paragraph Two (2) , THREE (3),
FOUR (4), FIVE (5), SIX (6), ELEVEN (11), TWELVE (12), and FOURTEEN (14), of the
Complaint are DENIED for lack of knowledge sufficient to form a belief as to the truth of such
allegations.[24]
By way of prayer, Echavia states:
WHEREFORE, it is respectfully prayed that after hearing, judgment be rendered dismissing
plaintiffs complaint.[25]
Anent the authorship by the respondent of the document quoted above, the Investigating
Committee found the testimonies of the complainant and Echavia credible as opposed to
respondents bare denial. As pointed out by Echavia, he was approached by Atty. Maderazo,
introduced himself as his lawyer and after some sessions in the latters office, asked him to return
and sign a document which he later identified as the Answer to the Amended Complaint.
The Investigating Committee found respondents defense weak. Respondent did not bother to
present his secretary as witness, nor obtain her affidavit to prove his allegations. Instead, he
offered a convenient excuse--- that he cannot anymore locate his secretary.
 Respondent argued that it was the complainant who asked him to prepare Echavias Answer
to the Amended Complaint, after reaching an agreement whereby Echavia would testify in favor
of the complainant. After he declined the request, he claimed that it was the complainant who
prepared the document and asked his secretary to print the same. But as shown, Echavias Answer
to the Amended Complaint was in no way favorable to the complainant.
With the dismissal of Civil Case No. 13666, Echavia is practically off the hook. We cannot
find any reason why Echavia would commit perjury and entangle himself, once again, with the
law. He does not stand to profit at all by accusing the respondent falsely.
Furthermore, considering complainants stature and lack of legal education, we can not see
how she could have prepared Echavias Answer to the Amended Complaint and device a legal
maneuver as complicated as the present case.
Respondents attack on the credibility of Investigating Commissioner Ingles to render an
impartial decision, having been an adversary in Civil Case No. R-33277, does not convince us to
grant new trial. This is the first time that respondent questions the membership of Commissioner
Ingles in the Investigating Committee. If respondent really believed in good faith that
Commissioner Ingles would be biased and prejudiced, he should have asked for the latters
inhibition at the first instance. Moreover, we could not find any hint of irregularity, bias or
prejudice in the conduct of the investigation that would lead us to set it aside.
Finally, we remind the respondent that the practice of law is not a property right but a mere
privilege, and as such, must bow to the inherent regulatory power of the Court to exact
compliance with the lawyers public responsibilities.[26] The suspension of the respondents
privilege to practice law may result to financial woes. But as the guardian of the legal profession,
we are constrained to balance this concern with the injury he caused to the very same profession
he vowed to uphold with honesty and fairness.
IN VIEW WHEREOF, the Resolution of the IBP finding the respondent guilty of violating
Canon 6 of the Code of Professional Ethics, and Canon 15 and Rule 15.03 of the Code of
Professional Responsibility is affirmed. Respondent is suspended from the practice of law for six
(6) months with a stern warning that a similar act in the future shall be dealt with more severely.
SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A.M. No. 10-5-7-SC December 7, 2010
JOVITO S. OLAZO, Complainant,
vs.
JUSTICE DANTE O. TINGA (Ret.), Respondent.
DECISION
BRION, J.:
Before us is the disbarment case against retired Supreme Court Associate Justice
Dante O. Tinga (respondent) filed by Mr. Jovito S. Olazo (complainant). The respondent
is charged of violating Rule 6.02,1 Rule 6.032 and Rule 1.013of the Code of Professional
Responsibility for representing conflicting interests.
Factual Background
In March 1990, the complainant filed a sales application covering a parcel of land
situated in Barangay Lower Bicutan in the Municipality of Taguig. The land (subject
land) was previously part of Fort Andres Bonifacio that was segregated and declared
open for disposition pursuant to Proclamation No. 2476, 4 issued on January 7, 1986,
and Proclamation No. 172,5 issued on October 16, 1987.
To implement Proclamation No. 172, Memorandum No. 119 was issued by then
Executive Secretary Catalino Macaraig, creating a Committee on Awards whose duty
was to study, evaluate, and make a recommendation on the applications to purchase
the lands declared open for disposition. The Committee on Awards was headed by the
Director of Lands and the respondent was one of the Committee members, in his official
capacity as the Congressman of Taguig and Pateros (from 1987 to 1998); the
respondent’s district includes the areas covered by the proclamations.
The First Charge: Violation of Rule 6.02
In the complaint,6 the complainant claimed that the respondent abused his position as
Congressman and as a member of the Committee on Awards when he unduly interfered
with the complainant’s sales application because of his personal interest over the
subject land. The complainant alleged that the respondent exerted undue pressure and
influence over the complainant’s father, Miguel P. Olazo, for the latter to contest the
complainant’s sales application and claim the subject land for himself. The complainant
also alleged that the respondent prevailed upon Miguel Olazo to accept, on various
dates, sums of money as payment of the latter’s alleged rights over the subject land.
The complainant further claimed that the respondent brokered the transfer of rights of
the subject land between Miguel Olazo and Joseph Jeffrey Rodriguez, who is the
nephew of the respondent’s deceased wife.
As a result of the respondent’s abuse of his official functions, the complainant’s sales
application was denied. The conveyance of rights to Joseph Jeffrey Rodriguez and his
sales application were subsequently given due course by the Department of
Environment and Natural Resources (DENR).
The Second Charge: Violation of Rule 6.03
The second charge involves another parcel of land within the proclaimed areas
belonging to Manuel Olazo, the complainant’s brother. The complainant alleged that the
respondent persuaded Miguel Olazo to direct Manuel to convey his rights over the land
to Joseph Jeffrey Rodriguez. As a result of the respondent’s promptings, the rights to
the land were transferred to Joseph Jeffrey Rodriguez.
In addition, the complainant alleged that in May 1999, the respondent met with Manuel
for the purpose of nullifying the conveyance of rights over the land to Joseph Jeffrey
Rodriguez. The complainant claimed that the respondent wanted the rights over the
land transferred to one Rolando Olazo, the Barangay Chairman of Hagonoy, Taguig.
The respondent in this regard executed an "Assurance" where he stated that he was the
lawyer of Ramon Lee and Joseph Jeffrey Rodriguez.
The Third Charge: Violation of Rule 1.01
The complainant alleged that the respondent engaged in unlawful conduct considering
his knowledge that Joseph Jeffrey Rodriguez was not a qualified beneficiary under
Memorandum No. 119. The complainant averred that Joseph Jeffrey Rodriguez is not a
bona fide resident of the proclaimed areas and does not qualify for an award. Thus, the
approval of his sales application by the Committee on Awards amounted to a violation
of the objectives of Proclamation No. 172 and Memorandum No. 119.
The complainant also alleged that the respondent violated Section 7(b)(2) of the Code
of Conduct and Ethical Standards for Public Officials and Employees or Republic Act
(R.A.) No. 6713 since he engaged in the practice of law, within the one-year prohibition
period, when he appeared as a lawyer for Ramon Lee and Joseph Jeffrey Rodriguez
before the Committee on Awards.
In his Comment,7 the respondent claimed that the present complaint is the third
malicious charge filed against him by the complainant. The first one was submitted
before the Judicial and Bar Council when he was nominated as an Associate Justice of
the Supreme Court; the second complaint is now pending with the Office of the
Ombudsman, for alleged violation of Section 3(e) and (i) of R.A. No. 3019, as amended.
With his own supporting documents, the respondent presented a different version of the
antecedent events.
The respondent asserted that Miguel Olazo owned the rights over the subject land and
he later conveyed these rights to Joseph Jeffrey Rodriguez. Miguel Olazo’s rights over
the subject land and the transfer of his rights to Joseph Jeffrey Rodriguez were duly
recognized by the Secretary of the DENR before whom the conflict of rights over the
subject land (between Miguel Olazo and Joseph Jeffrey Rodriguez, on one hand, and
the complainant on the other hand) was brought. In its decision, the DENR found
Joseph Jeffrey Rodriguez a qualified applicant, and his application over the subject land
was given due course. The respondent emphasized that the DENR decision is now final
and executory. It was affirmed by the Office of the President, by the Court of Appeals
and by the Supreme Court.
The respondent also advanced the following defenses:
(1) He denied the complainant’s allegation that Miguel Olazo told him (complainant) that
the respondent had been orchestrating to get the subject land. The respondent argued
that this allegation was without corroboration and was debunked by the affidavits of
Miguel Olazo and Francisca Olazo, the complainant’s sister.
(2) He denied the complainant’s allegation that he offered the complainant ₱50,000.00
for the subject land and that he (the respondent) had exerted undue pressure and
influence on Miguel Olazo to claim the rights over the subject land. The respondent also
denied that he had an inordinate interest in the subject land.
(3) He claimed that there was nothing wrong in signing as a witness in Miguel Olazo’s
affidavit where the latter asserted his rights over the subject land. The affidavit merely
attested to the truth.
(4) He asserted that he and Miguel Olazo were cousins and that the latter decided to
sell his rights over the subject land for the medical treatment of his heart condition and
the illness of his daughter, Francisca Olazo. The respondent insisted that the money he
extended to them was a form of loan.
(5) The respondent’s participation in the transaction between Miguel Olazo and Joseph
Jeffrey Rodriguez involved the payment of the loan that the respondent extended to
Miguel Olazo.
(6) Manuel’s belated and secondhand allegation in his Sinumpaang Salaysay, dated
January 20, 2000, regarding what his father told him, cannot prevail over his earlier
Sinumpaang Salaysay with Francisca Olazo, dated August 2, 1997. In the said
Sinumpaang Salaysay, Manuel categorically asserted that his father Miguel Olazo, not
the complainant, was the farmer-beneficiary. Manuel also expressed his agreement to
the transfer of rights (Pagpapatibay Sa Paglilipat Ng Karapatan) in favor of Joseph
Jeffrey Rodriguez, and the withdrawal of his father’s application to give way to Joseph
Jeffrey Rodriguez’s application.
(7) The complainant’s allegation that the respondent had pressured and influenced
Miguel Olazo to sell the subject land was not sufficient as it was lacking in specificity
and corroboration. The DENR decision was clear that the complainant had no rights
over the subject land.
The respondent additionally denied violating Rule 1.01 of the Code of Professional
Responsibility. He alleged that during his third term as Congressman from 1995 to
1997, the conflicting applications of the complainant, Miguel Olazo and Joseph Jeffrey
Rodriguez were not included in the agenda for deliberation of the Committee on
Awards. Rather, their conflicting claims and their respective supporting documents were
before the Office of the Regional Director, NCR of the DENR. This office ruled over the
conflicting claims only on August 2, 2000. This ruling became the basis of the decision
of the Secretary of the DENR.
Similarly, the respondent cannot be held liable under Rule 6.02 of the Code of
Professional Responsibility since the provision applies to lawyers in the government
service who are allowed by law to engage in private law practice and to those who,
though prohibited from engaging in the practice of law, have friends, former associates
and relatives who are in the active practice of law.8 In this regard, the respondent had
already completed his third term in Congress and his stint in the Committee on Awards
when he represented Joseph Jeffrey Rodriguez on May 24, 1999.
Lastly, the respondent claimed that he cannot be held liable under Rule 6.03 of the
Code of Professional Responsibility since he did not intervene in the disposition of the
conflicting applications of the complainant and Joseph Jeffrey Rodriguez because the
applications were not submitted to the Committee on Awards when he was still a
member.
The Court’s Ruling
Generally, a lawyer who holds a government office may not be disciplined as a member
of the Bar for misconduct in the discharge of his duties as a government official. 9 He
may be disciplined by this Court as a member of the Bar only when his misconduct also
constitutes a violation of his oath as a lawyer.10
The issue in this case calls for a determination of whether the respondent’s actions
constitute a breach of the standard ethical conduct – first, while the respondent was still
an elective public official and a member of the Committee on Awards; and second,
when he was no longer a public official, but a private lawyer who represented a client
before the office he was previously connected with.
After a careful evaluation of the pleadings filed by both parties and their respective
pieces of evidence, we resolve to dismiss the administrative complaint.
Accountability of a government lawyer in public office
Canon 6 of the Code of Professional Responsibility highlights the continuing standard of
ethical conduct to be observed by government lawyers in the discharge of their official
tasks. In addition to the standard of conduct laid down under R.A. No. 6713 for
government employees, a lawyer in the government service is obliged to observe the
standard of conduct under the Code of Professional Responsibility.
Since public office is a public trust, the ethical conduct demanded upon lawyers in the
government service is more exacting than the standards for those in private practice.
Lawyers in the government service are subject to constant public scrutiny under norms
of public accountability. They also bear the heavy burden of having to put aside their
private interest in favor of the interest of the public; their private activities should not
interfere with the discharge of their official functions.11
The first charge involves a violation of Rule 6.02 of the Code of Professional
Responsibility. It imposes the following restrictions in the conduct of a government
lawyer:
A lawyer in the government service shall not use his public position to promote or
advance his private interests, nor allow the latter to interfere with his public duties.
The above provision prohibits a lawyer from using his or her public position to: (1)
promote private interests; (2) advance private interests; or (3) allow private interest to
interfere with his or her public duties. We previously held that the restriction extends to
all government lawyers who use their public offices to promote their private interests. 12
In Huyssen v. Gutierrez,13 we defined promotion of private interest to include soliciting
gifts or anything of monetary value in any transaction requiring the approval of his or her
office, or may be affected by the functions of his or her office. In Ali v. Bubong, 14 we
recognized that private interest is not limited to direct interest, but extends to advancing
the interest of relatives. We also ruled that private interest interferes with public duty
when the respondent uses the office and his or her knowledge of the intricacies of the
law to benefit relatives.15
In Vitriolo v. Dasig,16 we found the act of the respondent (an official of the Commission
on Higher Education) of extorting money from persons with applications or requests
pending before her office to be a serious breach of Rule 6.02 of the Code of
Professional Responsibility.17 We reached the same conclusion in Huyssen, where we
found the respondent (an employee of the Bureau of Immigration and Deportation)
liable under Rule 6.02 of the Code of Professional Responsibility, based on the
evidence showing that he demanded money from the complainant who had a pending
application for visas before his office.18
Similarly, in Igoy v. Soriano19 we found the respondent (a Court Attorney of this Court)
liable for violating Rule 6.02 of the Code of Professional Responsibility, after
considering the evidence showing that he demanded and received money from the
complainant who had a pending case before this Court.
Applying these legal precepts to the facts of the case, we find the absence of any
concrete proof that the respondent abused his position as a Congressman and as a
member of the Committee on Awards in the manner defined under Rule 6.02 of the
Code of Professional Responsibility.
First, the records do not clearly show if the complainant’s sales application was ever
brought before the Committee on Awards. By the complaint’s own account, the
complainant filed a sales application in March 1990 before the Land Management
Bureau. By 1996, the complainant’s sales application was pending before the Office of
the Regional Director, NCR of the DENR due to the conflicting claims of Miguel Olazo,
and, subsequently, of Joseph Jeffrey Rodriguez. The records show that it was only on
August 2, 2000 that the Office of the Regional Director, NCR of the DENR rendered its
decision, or after the term of the respondent’s elective public office and membership to
the Committee on Awards, which expired in 1997.
These circumstances do not show that the respondent did in any way promote, advance
or use his private interests in the discharge of his official duties. To repeat, since the
sales application was not brought before the Committee on Awards when the
respondent was still a member, no sufficient basis exists to conclude that he used his
position to obtain personal benefits. We note in this regard that the denial of the
complainant’s sales application over the subject land was made by the DENR, not by
the Committee on Awards.
Second, the complainant’s allegation that the respondent "orchestrated" the efforts to
get the subject land does not specify how the orchestration was undertaken. What
appears clear in the records is the uncorroborated Sinumpaang Salaysay of Miguel
Olazo, dated May 25, 2003,20 categorically stating that the respondent had no interest in
the subject land, and neither was he a contracting party in the transfer of his rights over
the subject land. In the absence of any specific charge, Olazo’s disclaimer is the
nearest relevant statement on the respondent’s alleged participation, and we find it to
be in the respondent’s favor.
Third, the other documents executed by Miguel Olazo, that the complainant presented
to support his claim that the respondent exerted undue pressure and influence over his
father (namely: the letter, dated June 22, 1996, to the DENR Regional Director-
NCR;21 the Sinumpaang Salaysay dated July 12, 1996;22 and the Sinumpaang Salaysay
dated July 17, 199623), do not contain any reference to the alleged pressure or force
exerted by the respondent over Miguel Olazo. The documents merely showed that the
respondent helped Miguel Olazo in having his farm lots (covered by the proclaimed
areas) surveyed. They also showed that the respondent merely acted as a witness in
the Sinumpaang Salaysay dated July 17, 1996. To our mind, there are neutral acts that
may be rendered by one relative to another, and do not show how the respondent could
have influenced the decision of Miguel Olazo to contest the complainant’s sales
application. At the same time, we cannot give any credit to the Sinumpaang Salaysay,
dated January 20, 2000, of Manuel. They are not only hearsay but are contrary to what
Miguel Olazo states on the record. We note that Manuel had no personal knowledge,
other than what Miguel Olazo told him, of the force allegedly exerted by the respondent
against Miguel Olazo.
In turn, the respondent was able to provide a satisfactory explanation - backed by
corroborating evidence - of the nature of the transaction in which he gave the various
sums of money to Miguel Olazo and Francisca Olazo in the year 1995. In her affidavits
dated May 25, 200324 and July 21, 2010,25 Francisca Olazo corroborated the
respondent’s claim that the sums of money he extended to her and Miguel Olazo were
loans used for their medical treatment. Miguel Olazo, in his Sinumpaang Salaysay
dated May 25, 2003, asserted that some of the money borrowed from the respondent
was used for his medical treatment and hospitalization expenses.
The affidavit of Joseph Jeffrey Rodriguez further corroborated the respondent’s claim
that the latter’s involvement was limited to being paid the loans he gave to Miguel Olazo
and Francisca Olazo. According to Joseph Jeffrey Rodriguez, he and Miguel Olazo
agreed that a portion of the loan would be directly paid by Joseph Jeffrey Rodriguez to
the respondent and the amount paid would be considered as part of the purchase price
of the subject land.26
It also bears stressing that a facial comparison of the documentary evidence,
specifically the dates when the sums of money were extended by the respondent – on
February 21, 1995, September 2, 1995 and October 17, 1995, and the date when the
Deed of Conveyance27 over the subject land was executed or on October 25, 1995,
showed that the sums of money were extended prior to the transfer of rights over the
subject land. These pieces of evidence are consistent with the respondent’s allegation
that Miguel Olazo decided to sell his rights over the subject land to pay the loans he
obtained from the respondent and, also, to finance his continuing medical treatment.
Private practice of law after separation from public office
As proof that the respondent was engaged in an unauthorized practice of law after his
separation from the government service, the complainant presented the Sinumpaang
Salaysay, dated January 20, 2000, of Manuel and the document entitled "Assurance"
where the respondent legally represented Ramon Lee and Joseph Jeffrey Rodriguez.
Nevertheless, the foregoing pieces of evidence fail to persuade us to conclude that
there was a violation of Rule 6.03 of the Code of Professional Responsibility.
In Cayetano v. Monsod,28 we defined the practice of law as any activity, in and out of
court, that requires the application of law, legal procedure, knowledge, training and
experience. Moreover, we ruled that to engage in the practice of law is to perform those
acts which are characteristics of the profession; 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.
Under the circumstances, the foregoing definition should be correlated with R.A. No.
6713 and Rule 6.03 of the Code of Professional Responsibility which impose certain
restrictions on government lawyers to engage in private practice after their separation
from the service.
Section 7(b)(2) of R.A. No. 6713 reads:
Section 7. Prohibited Acts and Transactions. — In addition to acts and
omissions of public officials and employees now prescribed in the Constitution and
existing laws, the following shall constitute prohibited acts and transactions of any public
official and employee and are hereby declared to be unlawful:
xxxx
(b) Outside employment and other activities related thereto. – Public officials and
employees during their incumbency shall not:
xxxx
(2) Engage in the private practice of their profession unless authorized by the
Constitution or law, provided, that such practice will not conflict or tend to conflict with
their official functions; x x x
These prohibitions shall continue to apply for a period of one (1) year after resignation,
retirement, or separation from public office, except in the case of subparagraph (b) (2)
above, but the professional concerned cannot practice his profession in connection with
any matter before the office he used to be with, in which case the one-year prohibition
shall likewise apply.
As a rule, government lawyers are not allowed to engage in the private practice of their
profession during their incumbency.29 By way of exception, a government lawyer can
engage in the practice of his or her profession under the following conditions: first, the
private practice is authorized by the Constitution or by the law; and second, the practice
will not conflict or tend to conflict with his or her official functions. 30 The last paragraph
of Section 7 provides an exception to the exception. In case of lawyers separated from
the government service who are covered under subparagraph (b) (2) of Section 7 of
R.A. No. 6713, a one-year prohibition is imposed to practice law in connection with any
matter before the office he used to be with.
Rule 6.03 of the Code of Professional Responsibility echoes this restriction and
prohibits lawyers, after leaving the government service, to accept engagement or
employment in connection with any matter in which he had intervened while in the said
service. The keyword in Rule 6.03 of the Code of Professional Responsibility is the term
"intervene" which we previously interpreted to include an act of a person who has the
power to influence the proceedings.31 Otherwise stated, to fall within the ambit of Rule
6.03 of the Code of Professional Responsibility, the respondent must have accepted
engagement or employment in a matter which, by virtue of his public office, he had
previously exercised power to influence the outcome of the proceedings.1avvphi1
As the records show, no evidence exists showing that the respondent previously
interfered with the sales application covering Manuel’s land when the former was still a
member of the Committee on Awards. The complainant, too, failed to sufficiently
establish that the respondent was engaged in the practice of law. At face value, the
legal service rendered by the respondent was limited only in the preparation of a single
document. In Borja, Sr. v. Sulyap, Inc.,32we specifically described private practice of law
as one that contemplates a succession of acts of the same nature habitually or
customarily holding one’s self to the public as a lawyer.
In any event, even granting that respondent’s act fell within the definition of practice of
law, the available pieces of evidence are insufficient to show that the legal
representation was made before the Committee on Awards, or that the Assurance was
intended to be presented before it. These are matters for the complainant to prove and
we cannot consider any uncertainty in this regard against the respondent’s favor.
Violation of Rule 1.01
Rule 1.01 prohibits a lawyer from engaging in unlawful, immoral or deceitful conduct.
From the above discussion, we already struck down the complainant’s allegation that
respondent engaged in an unauthorized practice of law when he appeared as a lawyer
for Ramon Lee and Joseph Jeffrey Rodriguez before the Committee on Awards.
We find that a similar treatment should be given to the complainant’s claim that the
respondent violated paragraph 4(1)33 of Memorandum No. 119 when he encouraged the
sales application of Joseph Jeffrey Rodriguez despite his knowledge that his nephew
was not a qualified applicant. The matter of Joseph Jeffrey Rodriguez’s qualifications to
apply for a sales application over lots covered by the proclaimed areas has been
resolved in the affirmative by the Secretary of the DENR in the decision dated April 3,
2004,34 when the DENR gave due course to his sales application over the subject land.
We are, at this point, bound by this finding.
As pointed out by the respondent, the DENR decision was affirmed by the Office of the
President, the Court of Appeals35 and, finally, the Court, per our Minute Resolution,
dated October 11, 2006, in G.R. No. 173453. In our Resolution, we dismissed the
petition for review on certiorari filed by the complainant after finding, among others, that
no reversible error was committed by the Court of Appeals in its decision. 36
All told, considering the serious consequences of the penalty of disbarment or
suspension of a member of the Bar, the burden rests on the complainant to present
clear, convincing and satisfactory proof for the Court to exercise its disciplinary
powers.37 The respondent generally is under no obligation to prove his/her
defense,38 until the burden shifts to him/her because of what the complainant has
proven. Where no case has in the first place been proven, nothing has to be rebutted in
defense.39
With this in mind, we resolve to dismiss the administrative case against the respondent
for the complainant’s failure to prove by clear and convincing evidence that the former
committed unethical infractions warranting the exercise of the Court’s disciplinary
power.
WHEREFORE, premises considered, we DISMISS the administrative case for violation
of Rule 6.02, Rule 6.03 and Rule 1.01 of the Code of Professional Responsibility, filed
against retired Supreme Court Associate Justice Dante O. Tinga, for lack of merit.
SO ORDERED.
 EN BANC

DIANA RAMOS, A. C. No. 6788

Complainant, (Formerly, CBD 382)
Present:

PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
-versus- CORONA,
CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,*
GARCIA,
VELASCO, JR.,
NACHURA and
REYES, JJ.

ATTY. JOSE R. IMBANG,

Respondent. Promulgated:

August 23, 2007

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

RESOLUTION

PER CURIAM:

This is a complaint for disbarment or suspension[1] against Atty. Jose R. Imbang for multiple
violations of the Code of Professional Responsibility.

THE COMPLAINT

In 1992, the complainant Diana Ramos sought the assistance of respondent Atty. Jose R.
Imbang in filing civil and criminal actions against the spouses Roque and Elenita
Jovellanos.[2] She gave respondent P8,500 as attorney's fees but the latter issued a receipt
for P5,000 only.[3]
The complainant tried to attend the scheduled hearings of her cases against the Jovellanoses.
Oddly, respondent never allowed her to enter the courtroom and always told her to wait outside.
He would then come out after several hours to inform her that the hearing had been cancelled
and rescheduled.[4] This happened six times and for each appearance in court, respondent
charged her P350.

After six consecutive postponements, the complainant became suspicious. She personally
inquired about the status of her cases in the trial courts of Bian and San Pedro, Laguna. She was
shocked to learn that respondent never filed any case against the Jovellanoses and that he was in
fact employed in the Public Attorney's Office (PAO).[5]

RESPONDENT'S DEFENSE
According to respondent, the complainant knew that he was in the government service from the
very start. In fact, he first met the complainant when he was still a district attorney in the
Citizen's Legal Assistance Office (predecessor of PAO) of Bian, Laguna and was assigned as
counsel for the complainant's daughter.[6]

In 1992, the complainant requested him to help her file an action for damages against the
Jovellanoses.[7] Because he was with the PAO and aware that the complainant was not an
indigent, he declined.[8] Nevertheless, he advised the complainant to consult Atty. Tim Ungson, a
relative who was a private practitioner.[9] Atty. Ungson, however, did not accept the
complainant's case as she was unable to come up with the acceptance fee agreed
upon.[10] Notwithstanding Atty. Ungson's refusal, the complainant allegedly remained adamant.
She insisted on suing the Jovellanoses. Afraid that she might spend the cash on hand, the
complainant asked respondent to keep the P5,000 while she raised the balance of Atty. Ungson's
acceptance fee.[11]

A year later, the complainant requested respondent to issue an antedated receipt because one of
her daughters asked her to account for the P5,000 she had previously given the respondent for
safekeeping.[12] Because the complainant was a friend, he agreed and issued a receipt dated July
15, 1992.[13]

On April 15, 1994, respondent resigned from the PAO.[14] A few months later or in September
1994, the complainant again asked respondent to assist her in suing the Jovellanoses. Inasmuch
as he was now a private practitioner, respondent agreed to prepare the complaint. However, he
was unable to finalize it as he lost contact with the complainant.[15]

RECOMMENDATION OF THE IBP

Acting on the complaint, the Commission on Bar Discipline (CBD) of the Integrated Bar of the
Philippines (IBP) where the complaint was filed, received evidence from the parties. On
November 22, 2004, the CBD submitted its report and recommendation to the IBP Board of
Governors.[16]
The CBD noted that the receipt[17] was issued on July 15, 1992 when respondent was still with
the PAO.[18] It also noted that respondent described the complainant as a shrewd businesswoman
and that respondent was a seasoned trial lawyer. For these reasons, the complainant would not
have accepted a spurious receipt nor would respondent have issued one. The CBD rejected
respondent's claim that he issued the receipt to accommodate a friend's request.[19] It found
respondent guilty of violating the prohibitions on government lawyers from accepting private
cases and receiving lawyer's fees other than their salaries.[20] The CBD concluded that respondent
violated the following provisions of the Code of Professional Responsibility:

Rule 1.01. A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.

Rule 16.01. A lawyer shall account for all money or property collected or received for or from a
client.

Rule 18.01. A lawyer should not undertake a legal service which he knows or should know that
he is not qualified to render. However, he may render such service if, with the consent of his
client, he can obtain as collaborating counsel a lawyer who is competent on the matter.

Thus, it recommended respondent's suspension from the practice of law for three years and
ordered him to immediately return to the complainant the amount of P5,000 which was
substantiated by the receipt.[21]

The IBP Board of Governors adopted and approved the findings of the CBD that respondent
violated Rules 1.01, 16.01 and 18.01 of the Code of Professional Responsibility. It, however,
modified the CBD's recommendation with regard to the restitution of P5,000 by imposing
interest at the legal rate, reckoned from 1995 or, in case of respondent's failure to return the total
amount, an additional suspension of six months.[22]

THE COURT'S RULING

We adopt the findings of the IBP with modifications.

Lawyers are expected to conduct themselves with honesty and integrity.[23] More specifically,
lawyers in government service are expected to be more conscientious of their actuations as they
are subject to public scrutiny. They are not only members of the bar but also public servants who
owe utmost fidelity to public service.[24]

Government employees are expected to devote themselves completely to public service. For this
reason, the private practice of profession is prohibited. Section 7(b)(2) of the Code of Ethical
Standards for Public Officials and Employees provides:
Section 7. Prohibited Acts and Transactions. -- In addition to acts and omissions of public
officials and employees now prescribed in the Constitution and existing laws, the following
constitute prohibited acts and transactions of any public official and employee and are hereby
declared unlawful:

xxx xxx xxx

(b) Outside employment and other activities related thereto, public officials and employees
during their incumbency shall not:

xxx xxx xxx

(1) Engage in the private practice of profession unless authorized by the Constitution or law,
provided that such practice will not conflict with their official function.[25]

Thus, lawyers in government service cannot handle private cases for they are expected to devote
themselves full-time to the work of their respective offices.

In this instance, respondent received P5,000 from the complainant and issued a receipt on July
15, 1992 while he was still connected with the PAO. Acceptance of money from a client
establishes an attorney-client relationship.[26] Respondent's admission that he accepted money
from the complainant and the receipt confirmed the presence of an attorney-client relationship
between him and the complainant. Moreover, the receipt showed that he accepted the
complainant's case while he was still a government lawyer. Respondent clearly violated the
prohibition on private practice of profession.

Aggravating respondent's wrongdoing was his receipt of attorney's fees. The PAO was created
for the purpose of providing free legal assistance to indigent litigants.[27] Section 14(3), Chapter
5, Title III, Book V of the Revised Administrative Code provides:

Sec. 14. xxx

The PAO shall be the principal law office of the Government in extending free legal assistance to
indigent persons in criminal, civil, labor, administrative and other quasi-judicial cases.[28]

As a PAO lawyer, respondent should not have accepted attorney's fees from the complainant as
this was inconsistent with the office's mission.[29] Respondent violated the prohibition against
accepting legal fees other than his salary.

Canon 1 of the Code of Professional Responsibility provides:

CANON 1. A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS OF

THE LAND AND PROMOTE RESPECT FOR THE LAW AND LEGAL PROCESSES.
Every lawyer is obligated to uphold the law.[30] This undertaking includes the observance of the
above-mentioned prohibitions blatantly violated by respondent when he accepted the
complainant's cases and received attorney's fees in consideration of his legal services.
Consequently, respondent's acceptance of the cases was also a breach of Rule 18.01 of the Code
of Professional Responsibility because the prohibition on the private practice of profession
disqualified him from acting as the complainant's counsel.

Aside from disregarding the prohibitions against handling private cases and accepting attorney's
fees, respondent also surreptitiously deceived the complainant. Not only did he fail to file a
complaint against the Jovellanoses (which in the first place he should not have done), respondent
also led the complainant to believe that he really filed an action against the Jovellanoses. He
even made it appear that the cases were being tried and asked the complainant to pay his
appearance fees for hearings that never took place. These acts constituted dishonesty, a violation
of the lawyer's oath not to do any falsehood.[31]

Respondent's conduct in office fell short of the integrity and good moral character required of all
lawyers, specially one occupying a public office. Lawyers in public office are expected not only
to refrain from any act or omission which tend to lessen the trust and confidence of the citizenry
in government but also uphold the dignity of the legal profession at all times and observe a high
standard of honesty and fair dealing. A government lawyer is a keeper of public faith and is
burdened with a high degree of social responsibility, higher than his brethren in private
practice.[32]

There is, however, insufficient basis to find respondent guilty of violating Rule 16.01 of the
Code of Professional Responsibility. Respondent did not hold the money for the benefit of the
complainant but accepted it as his attorney's fees. He neither held the amount in trust for the
complainant (such as an amount delivered by the sheriff in satisfaction of a judgment obligation
in favor of the client)[33] nor was it given to him for a specific purpose (such as amounts given
for filing fees and bail bond).[34] Nevertheless, respondent should return the P5,000 as he, a
government lawyer, was not entitled to attorney's fees and not allowed to accept them.[35]
WHEREFORE, Atty. Jose R. Imbang is found guilty of violating the lawyers oath, Canon 1,
Rule 1.01 and Canon 18, Rule 18.01 of the Code of Professional Responsibility. Accordingly, he
is hereby DISBARRED from the practice of law and his name is ORDERED STRICKEN from
the Roll of Attorneys. He is also ordered to return to complainant the amount of P5,000 with
interest at the legal rate, reckoned from 1995, within 10 days from receipt of this resolution.

Let a copy of this resolution be attached to the personal records of respondent in the
Office of the Bar Confidant and notice of the same be served on the Integrated Bar of the
Philippines and on the Office of the Court Administrator for circulation to all courts in the
country.
SO ORDERED.
 EN BANC
[G.R. Nos. 151809-12. April 12, 2005]
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG), petitioner,
vs. SANDIGANBAYAN (Fifth Division), LUCIO C. TAN, CARMEN KHAO TAN,
FLORENCIO T. SANTOS, NATIVIDAD P. SANTOS, DOMINGO CHUA, TAN HUI
NEE, MARIANO TAN ENG LIAN, ESTATE OF BENITO TAN KEE HIONG
(represented by TARCIANA C. TAN), FLORENCIO N. SANTOS, JR., HARRY C.
TAN, TAN ENG CHAN, CHUNG POE KEE, MARIANO KHOO, MANUEL KHOO,
MIGUEL KHOO, JAIME KHOO, ELIZABETH KHOO, CELSO RANOLA, WILLIAM T.
WONG, ERNESTO B. LIM, BENJAMIN T. ALBACITA, WILLY CO, ALLIED BANKING
CORP., ALLIED LEASING AND FINANCE CORPORATION, ASIA BREWERY, INC.,
BASIC HOLDINGS CORP., FOREMOST FARMS, INC., FORTUNE TOBACCO
CORP., GRANDSPAN DEVELOPMENT CORP., HIMMEL INDUSTRIES, IRIS
HOLDINGS AND DEVELOPMENT CORP., JEWEL HOLDINGS, INC.,
MANUFACTURING SERVICES AND TRADE CORP., MARANAW HOTELS AND
RESORT CORP., NORTHERN TOBACCO REDRYING PLANT, PROGRESSIVE
FARMS, INC., SHAREHOLDINGS, INC., SIPALAY TRADING CORP., VIRGO
HOLDINGS & DEVELOPMENT CORP., and ATTY. ESTELITO P.
MENDOZA, respondents.
DECISION
PUNO, J.:
This case is prima impressiones and it is weighted with significance for it concerns
on one hand, the efforts of the Bar to upgrade the ethics of lawyers in government
service and on the other, its effect on the right of government to recruit competent
counsel to defend its interests.
In 1976, General Bank and Trust Company (GENBANK) encountered financial
difficulties. GENBANK had extended considerable financial support to Filcapital
Development Corporation causing it to incur daily overdrawings on its current account
with the Central Bank.[1] It was later found by the Central Bank that GENBANK had
approved various loans to directors, officers, stockholders and related interests
totaling P172.3 million, of which 59% was classified as doubtful and P0.505 million as
uncollectible.[2] As a bailout, the Central Bank extended emergency loans to
GENBANK which reached a total of P310 million.[3] Despite the mega loans,
GENBANK failed to recover from its financial woes. On March 25, 1977, the Central
Bank issued a resolution declaring GENBANK insolvent and unable to resume
business with safety to its depositors, creditors and the general public, and ordering its
liquidation.[4] A public bidding of GENBANKs assets was held from March 26 to 28,
1977, wherein the Lucio Tan group submitted the winning bid. [5] Subsequently, former
Solicitor General Estelito P. Mendoza filed a petition with the then Court of First
Instance praying for the assistance and supervision of the court in GENBANKs
liquidation as mandated by Section 29 of Republic Act No. 265.
In February 1986, the EDSA I revolution toppled the Marcos government. One of
the first acts of President Corazon C. Aquino was to establish the Presidential
Commission on Good Government (PCGG) to recover the alleged ill-gotten wealth of
former President Ferdinand Marcos, his family and his cronies. Pursuant to this
mandate, the PCGG, on July 17, 1987, filed with the Sandiganbayan a complaint
for reversion, reconveyance, restitution, accounting and damages against
respondents Lucio Tan, Carmen Khao Tan, Florencio T. Santos, Natividad P. Santos,
Domingo Chua, Tan Hui Nee, Mariano Tan Eng Lian, Estate of Benito Tan Kee Hiong,
Florencio N. Santos, Jr., Harry C. Tan, Tan Eng Chan, Chung Poe Kee, Mariano Khoo,
Manuel Khoo, Miguel Khoo, Jaime Khoo, Elizabeth Khoo, Celso Ranola, William T.
Wong, Ernesto B. Lim, Benjamin T. Albacita, Willy Co, Allied Banking Corporation
(Allied Bank), Allied Leasing and Finance Corporation, Asia Brewery, Inc., Basic
Holdings Corp., Foremost Farms, Inc., Fortune Tobacco Corporation, Grandspan
Development Corp., Himmel Industries, Iris Holdings and Development Corp., Jewel
Holdings, Inc., Manufacturing Services and Trade Corp., Maranaw Hotels and Resort
Corp., Northern Tobacco Redrying Plant, Progressive Farms, Inc., Shareholdings, Inc.,
Sipalay Trading Corp., Virgo Holdings & Development Corp., (collectively referred to
herein as respondents Tan, et al.), then President Ferdinand E. Marcos, Imelda R.
Marcos, Panfilo O. Domingo, Cesar Zalamea, Don Ferry and Gregorio Licaros. The
case was docketed as Civil Case No. 0005 of the Second Division of
the Sandiganbayan.[6] In connection therewith, the PCGG issued several writs of
sequestration on properties allegedly acquired by the above-named persons by taking
advantage of their close relationship and influence with former President Marcos.
Respondents Tan, et al. repaired to this Court and filed petitions for certiorari,
prohibition and injunction to nullify, among others, the writs of sequestration issued by
the PCGG.[7] After the filing of the parties comments, this Court referred the cases to
the Sandiganbayan for proper disposition. These cases were docketed as Civil Case
Nos. 0096-0099. In all these cases, respondents Tan, et al. were represented by their
counsel, former Solicitor General Estelito P. Mendoza, who has then resumed his
private practice of law.
On February 5, 1991, the PCGG filed motions to disqualify respondent Mendoza
as counsel for respondents Tan, et al. with the Second Division of
the Sandiganbayan in Civil Case Nos. 0005[8] and 0096-0099.[9] The motions alleged
that respondent Mendoza, as then Solicitor General[10] and counsel to Central
Bank, actively intervened in the liquidation of GENBANK, which was subsequently
acquired by respondents Tan, et al. and became Allied Banking Corporation.
Respondent Mendoza allegedly intervened in the acquisition of GENBANK by
respondents Tan, et al. when, in his capacity as then Solicitor General, he advised the
Central Banks officials on the procedure to bring about GENBANKs liquidation and
appeared as counsel for the Central Bank in connection with its petition for assistance in
the liquidation of GENBANK which he filed with the Court of First Instance (now
Regional Trial Court) of Manila and was docketed as Special Proceeding No. 107812.
The motions to disqualify invoked Rule 6.03 of the Code of Professional
Responsibility. Rule 6.03 prohibits former government lawyers from accepting
engagement or employment in connection with any matter in which he had intervened
while in said service.
On April 22, 1991 the Second Division of the Sandiganbayan issued a
resolution denying PCGGs motion to disqualify respondent Mendoza in Civil Case No.
0005.[11] It found that the PCGG failed to prove the existence of an inconsistency
between respondent Mendozas former function as Solicitor General and his present
employment as counsel of the Lucio Tan group. It noted that respondent Mendoza did
not take a position adverse to that taken on behalf of the Central Bank during his term
as Solicitor General.[12] It further ruled that respondent Mendozas appearance as
counsel for respondents Tan, et al. was beyond the one-year prohibited period under
Section 7(b) of Republic Act No. 6713 since he ceased to be Solicitor General in the
year 1986. The said section prohibits a former public official or employee from practicing
his profession in connection with any matter before the office he used to be with within
one year from his resignation, retirement or separation from public office. [13] The PCGG
did not seek any reconsideration of the ruling.[14]
It appears that Civil Case Nos. 0096-0099 were transferred from
the Sandiganbayans Second Division to the Fifth Division.[15] In its resolution dated
July 11, 2001, the Fifth Division of the Sandiganbayan denied the other PCGGs motion
to disqualify respondent Mendoza.[16] It adopted the resolution of its Second
Division dated April 22, 1991, and observed that the arguments were the same in
substance as the motion to disqualify filed in Civil Case No. 0005. The PCGG sought
reconsideration of the ruling but its motion was denied in its resolution dated December
5, 2001.[17]
Hence, the recourse to this Court by the PCGG assailing the resolutions dated July
11, 2001 and December 5, 2001 of the Fifth Division of the Sandiganbayan via a
petition for certiorari and prohibition under Rule 65 of the 1997 Rules of Civil
Procedure.[18] The PCGG alleged that the Fifth Division acted with grave abuse of
discretion amounting to lack or excess of jurisdiction in issuing the assailed resolutions
contending that: 1) Rule 6.03 of the Code of Professional Responsibility prohibits a
former government lawyer from accepting employment in connection with any matter in
which he intervened; 2) the prohibition in the Rule is not time-bound; 3) that Central
Bank could not waive the objection to respondent Mendozas appearance on behalf of
the PCGG; and 4) the resolution in Civil Case No. 0005 was interlocutory, thus res
judicata does not apply.[19]
The petition at bar raises procedural and substantive issues of law. In view,
however, of the import and impact of Rule 6.03 of the Code of Professional
Responsibility to the legal profession and the government, we shall cut our way and
forthwith resolve the substantive issue.
I
Substantive Issue
The key issue is whether Rule 6.03 of the Code of Professional Responsibility
applies to respondent Mendoza. Again, the prohibition states: A lawyer shall not, after
leaving government service, accept engagement or employment in connection with
any matter in which he had intervened while in the said service.
I.A. The history of Rule 6.03
A proper resolution of this case necessitates that we trace the historical lineage of
Rule 6.03 of the Code of Professional Responsibility.
In the seventeenth and eighteenth centuries, ethical standards for lawyers were
pervasive in England and other parts of Europe. The early statements of standards did
not resemble modern codes of conduct. They were not detailed or collected in one
source but surprisingly were comprehensive for their time. The principal thrust of the
standards was directed towards the litigation conduct of lawyers. It underscored the
central duty of truth and fairness in litigation as superior to any obligation to the client.
The formulations of the litigation duties were at times intricate, including specific
pleading standards, an obligation to inform the court of falsehoods and a duty to explore
settlement alternatives. Most of the lawyer's other basic duties -- competency, diligence,
loyalty, confidentiality, reasonable fees and service to the poor -- originated in the
litigation context, but ultimately had broader application to all aspects of a lawyer's
practice.
The forms of lawyer regulation in colonial and early post-revolutionary
America did not differ markedly from those in England. The colonies and early states
used oaths, statutes, judicial oversight, and procedural rules to govern attorney
behavior. The difference from England was in the pervasiveness and continuity of such
regulation. The standards set in England varied over time, but the variation in early
America was far greater. The American regulation fluctuated within a single colony and
differed from colony to colony. Many regulations had the effect of setting some
standards of conduct, but the regulation was sporadic, leaving gaps in the substantive
standards. Only three of the traditional core duties can be fairly characterized as
pervasive in the formal, positive law of the colonial and post-revolutionary period: the
duties of litigation fairness, competency and reasonable fees.[20]
The nineteenth century has been termed the dark ages of legal ethics in the
United States. By mid-century, American legal reformers were filling the void in two
ways. First, David Dudley Field, the drafter of the highly influential New York Field
Code, introduced a new set of uniform standards of conduct for lawyers. This concise
statement of eight statutory duties became law in several states in the second half of
the nineteenth century. At the same time, legal educators, such as David Hoffman and
George Sharswood, and many other lawyers were working to flesh out the broad outline
of a lawyer's duties. These reformers wrote about legal ethics in unprecedented detail
and thus brought a new level of understanding to a lawyer's duties. A number of mid-
nineteenth century laws and statutes, other than the Field Code, governed lawyer
behavior. A few forms of colonial regulations e.g., the do no falsehood oath and the
deceit prohibitions -- persisted in some states. Procedural law continued to directly, or
indirectly, limit an attorney's litigation behavior. The developing law of agency
recognized basic duties of competence, loyalty and safeguarding of client property.
Evidence law started to recognize with less equivocation the attorney-client privilege
and its underlying theory of confidentiality. Thus, all of the core duties, with the likely
exception of service to the poor, had some basis in formal law. Yet, as in the colonial
and early post-revolutionary periods, these standards were isolated and did not provide
a comprehensive statement of a lawyer's duties. The reformers, by contrast, were more
comprehensive in their discussion of a lawyer's duties, and they actually ushered a new
era in American legal ethics.[21]
Toward the end of the nineteenth century, a new form of ethical standards began
to guide lawyers in their practice the bar association code of legal ethics. The bar codes
were detailed ethical standards formulated by lawyers for lawyers. They combined the
two primary sources of ethical guidance from the nineteenth century. Like the academic
discourses, the bar association codes gave detail to the statutory statements of duty
and the oaths of office. Unlike the academic lectures, however, the bar association
codes retained some of the official imprimatur of the statutes and oaths. Over time, the
bar association codes became extremely popular that states adopted them as binding
rules of law. Critical to the development of the new codes was the re-emergence of bar
associations themselves. Local bar associations formed sporadically during the colonial
period, but they disbanded by the early nineteenth century. In the late nineteenth
century, bar associations began to form again, picking up where their colonial
predecessors had left off. Many of the new bar associations, most notably the Alabama
State Bar Association and the American Bar Association, assumed on the task of
drafting substantive standards of conduct for their members.[22]
In 1887, Alabama became the first state with a comprehensive bar association
code of ethics. The 1887 Alabama Code of Ethics was the model for several states
codes, and it was the foundation for the American Bar Association's (ABA) 1908
Canons of Ethics.[23]
In 1917, the Philippine Bar found that the oath and duties of a lawyer were
insufficient to attain the full measure of public respect to which the legal profession was
entitled. In that year, the Philippine Bar Association adopted as its own, Canons 1 to 32
of the ABA Canons of Professional Ethics.[24]
As early as 1924, some ABA members have questioned the form and function of
the canons. Among their concerns was the revolving door or the process by which
lawyers and others temporarily enter government service from private life and then
leave it for large fees in private practice, where they can exploit information, contacts,
and influence garnered in government service.[25] These concerns were classified
as adverse-interest conflicts and congruent-interest conflicts. Adverse-interest
conflicts exist where the matter in which the former government lawyer represents a
client in private practice is substantially related to a matter that the lawyer dealt with
while employed by the government and the interests of the current and former are
adverse.[26] On the other hand, congruent-interest representation conflicts are
unique to government lawyers and apply primarily to former government lawyers. [27] For
several years, the ABA attempted to correct and update the canons through new
canons, individual amendments and interpretative opinions. In 1928, the ABA amended
one canon and added thirteen new canons.[28] To deal with problems peculiar to former
government lawyers, Canon 36 was minted which disqualified them both for adverse-
interest conflicts and congruent-interest representation conflicts.[29] The rationale for
disqualification is rooted in a concern that the government lawyers largely discretionary
actions would be influenced by the temptation to take action on behalf of the
government client that later could be to the advantage of parties who might later
become private practice clients.[30] Canon 36 provides, viz.:
36. Retirement from judicial position or public employment
A lawyer should not accept employment as an advocate in any matter upon the merits of which
he has previously acted in a judicial capacity.
A lawyer, having once held public office or having been in the public employ should not,
after his retirement, accept employment in connection with any matter he has investigated
or passed upon while in such office or employ.
Over the next thirty years, the ABA continued to amend many of the canons and
added Canons 46 and 47 in 1933 and 1937, respectively. [31]
In 1946, the Philippine Bar Association again adopted as its own Canons 33 to
47 of the ABA Canons of Professional Ethics.[32]
 By the middle of the twentieth century, there was growing consensus that the
ABA Canons needed more meaningful revision. In 1964, the ABA President-elect Lewis
Powell asked for the creation of a committee to study the adequacy and effectiveness of
the ABA Canons. The committee recommended that the canons needed substantial
revision, in part because the ABA Canons failed to distinguish between the inspirational
and the proscriptive and were thus unsuccessful in enforcement. The legal profession in
the United States likewise observed that Canon 36 of the ABA Canons of Professional
Ethics resulted in unnecessary disqualification of lawyers for negligible participation in
matters during their employment with the government.
The unfairness of Canon 36 compelled ABA to replace it in the 1969 ABA
Model Code of Professional Responsibility.[33] The basic ethical principles in the
Code of Professional Responsibility were supplemented by Disciplinary Rules that
defined minimum rules of conduct to which the lawyer must adhere. [34] In the case of
Canon 9, DR 9-101(b)[35]became the applicable supplementary norm. The drafting
committee reformulated the canons into the Model Code of Professional Responsibility,
and, in August of 1969, the ABA House of Delegates approved the Model Code.[36]
Despite these amendments, legal practitioners remained unsatisfied with the results
and indefinite standards set forth by DR 9-101(b) and the Model Code of Professional
Responsibility as a whole. Thus, in August 1983, the ABA adopted new Model Rules
of Professional Responsibility. The Model Rules used the restatement format, where
the conduct standards were set-out in rules, with comments following each rule. The
new format was intended to give better guidance and clarity for enforcement because
the only enforceable standards were the black letter Rules. The Model Rules eliminated
the broad canons altogether and reduced the emphasis on narrative discussion, by
placing comments after the rules and limiting comment discussion to the content of the
black letter rules. The Model Rules made a number of substantive improvements
particularly with regard to conflicts of interests.[37] In particular, the ABA did away with
Canon 9, citing the hopeless dependence of the concept of impropriety on the
subjective views of anxious clients as well as the norms indefinite nature.[38]
In cadence with these changes, the Integrated Bar of the Philippines (IBP)
adopted a proposed Code of Professional Responsibility in 1980 which it
submitted to this Court for approval. The Code was drafted to reflect the local
customs, traditions, and practices of the bar and to conform with new realities. On June
21, 1988, this Court promulgated the Code of Professional Responsibility.[39] Rule
6.03 of the Code of Professional Responsibility deals particularly with former
government lawyers, and provides, viz.:
Rule 6.03 A lawyer shall not, after leaving government service, accept engagement or
employment in connection with any matter in which he had intervened while in said service.
Rule 6.03 of the Code of Professional Responsibility retained the general structure
of paragraph 2, Canon 36 of the Canons of Professional Ethics but replaced the
expansive phrase investigated and passed upon with the word intervened. It is,
therefore, properly applicable to both adverse-interest conflicts and congruent-
interest conflicts.
The case at bar does not involve the adverse interest aspect of Rule 6.03.
Respondent Mendoza, it is conceded, has no adverse interest problem when he acted
as Solicitor General in Sp. Proc. No. 107812 and later as counsel of respondents
 Tan, et al. in Civil Case No. 0005 and Civil Case Nos. 0096-0099 before
the Sandiganbayan. Nonetheless, there remains the issue of whether there exists
a congruent-interest conflict sufficient to disqualify respondent Mendoza from
representing respondents Tan, et al.
I.B. The congruent interest aspect of Rule 6.03
The key to unlock Rule 6.03 lies in comprehending first, the meaning
of matter referred to in the rule and, second, the metes and bounds of
the intervention made by the former government lawyer on the matter. The American
Bar Association in its Formal Opinion 342, defined matter as any discrete, isolatable
act as well as identifiable transaction or conduct involving a particular situation and
specific party, and not merely an act of drafting, enforcing or interpreting government
or agency procedures, regulations or laws, or briefing abstract principles of law.
Firstly, it is critical that we pinpoint the matter which was the subject of intervention
by respondent Mendoza while he was the Solicitor General. The PCGG relates the
following acts of respondent Mendoza as constituting the matter where he intervened
as a Solicitor General, viz:[40]
The PCGGs Case for Atty. Mendozas Disqualification
The PCGG imputes grave abuse of discretion on the part of the Sandiganbayan (Fifth Division)
in issuing the assailed Resolutions dated July 11, 2001 and December 5, 2001 denying the
motion to disqualify Atty. Mendoza as counsel for respondents Tan, et al. The PCGG insists that
Atty. Mendoza, as then Solicitor General, actively intervened in the closure of GENBANK by
advising the Central Bank on how to proceed with the said banks liquidation and even filing the
petition for its liquidation with the CFI of Manila.
As proof thereof, the PCGG cites the Memorandum dated March 29, 1977 prepared by certain
key officials of the Central Bank, namely, then Senior Deputy Governor Amado R. Brinas, then
Deputy Governor Jaime C. Laya, then Deputy Governor and General Counsel Gabriel C.
Singson, then Special Assistant to the Governor Carlota P. Valenzuela, then Asistant to the
Governor Arnulfo B. Aurellano and then Director of Department of Commercial and Savings
Bank Antonio T. Castro, Jr., where they averred that on March 28, 1977, they had a conference
with the Solicitor General (Atty. Mendoza), who advised them on how to proceed with the
liquidation of GENBANK. The pertinent portion of the said memorandum states:
Immediately after said meeting, we had a conference with the Solicitor General and he advised
that the following procedure should be taken:
1. Management should submit a memorandum to the Monetary Board reporting that studies and
evaluation had been made since the last examination of the bank as of August 31, 1976 and it is
believed that the bank can not be reorganized or placed in a condition so that it may be permitted
to resume business with safety to its depositors and creditors and the general public.
2. If the said report is confirmed by the Monetary Board, it shall order the liquidation of the bank
and indicate the manner of its liquidation and approve a liquidation plan.
3. The Central Bank shall inform the principal stockholders of Genbank of the foregoing decision to
liquidate the bank and the liquidation plan approved by the Monetary Board.
4. The Solicitor General shall then file a petition in the Court of First Instance reciting the
proceedings which had been taken and praying the assistance of the Court in the liquidation of
Genbank.
The PCGG further cites the Minutes No. 13 dated March 29, 1977 of the Monetary Board where
it was shown that Atty. Mendoza was furnished copies of pertinent documents relating to
 GENBANK in order to aid him in filing with the court the petition for assistance in the banks
liquidation. The pertinent portion of the said minutes reads:
The Board decided as follows:
...
E. To authorize Management to furnish the Solicitor General with a copy of the subject memorandum
of the Director, Department of Commercial and Savings Bank dated March 29, 1977, together
with copies of:
1. Memorandum of the Deputy Governor, Supervision and Examination Sector, to the Monetary
Board, dated March 25, 1977, containing a report on the current situation of Genbank;
2. Aide Memoire on the Antecedent Facts Re: General Bank and Trust Co., dated March 23, 1977;
3. Memorandum of the Director, Department of Commercial and Savings Bank, to the Monetary
Board, dated March 24, 1977, submitting, pursuant to Section 29 of R.A. No. 265, as amended
by P.D. No. 1007, a repot on the state of insolvency of Genbank, together with its attachments;
and
4. Such other documents as may be necessary or needed by the Solicitor General for his use in then
CFI-praying the assistance of the Court in the liquidation of Genbank.
Beyond doubt, therefore, the matter or the act of respondent Mendoza as Solicitor
General involved in the case at bar is advising the Central Bank, on how to
proceed with the said banks liquidation and even filing the petition for its liquidation with
the CFI of Manila. In fine, the Court should resolve whether his act of advising the
Central Bank on the legal procedure to liquidate GENBANK is included within the
concept of matter under Rule 6.03. The procedure of liquidation is given in black and
white in Republic Act No. 265, section 29, viz:
The provision reads in part:
SEC. 29. Proceedings upon insolvency. Whenever, upon examination by the head of the
appropriate supervising or examining department or his examiners or agents into the condition of
any bank or non-bank financial intermediary performing quasi-banking functions, it shall be
disclosed that the condition of the same is one of insolvency, or that its continuance in business
would involve probable loss to its depositors or creditors, it shall be the duty of the department
head concerned forthwith, in writing, to inform the Monetary Board of the facts, and the Board
may, upon finding the statements of the department head to be true, forbid the institution to do
business in the Philippines and shall designate an official of the Central Bank or a person of
recognized competence in banking or finance, as receiver to immediately take charge of its assets
and liabilities, as expeditiously as possible collect and gather all the assets and administer the
same for the benefit of its creditors, exercising all the powers necessary for these purposes
including, but not limited to, bringing suits and foreclosing mortgages in the name of the bank or
non-bank financial intermediary performing quasi-banking functions.
...
If the Monetary Board shall determine and confirm within the said period that the bank or
non-bank financial intermediary performing quasi-banking functions is insolvent or cannot
resume business with safety to its depositors, creditors and the general public, it shall, if the
public interest requires, order its liquidation, indicate the manner of its liquidation and approve a
liquidation plan. The Central Bank shall, by the Solicitor General, file a petition in the Court of
First Instance reciting the proceedings which have been taken and praying the assistance of the
court in the liquidation of such institution. The court shall have jurisdiction in the same
proceedings to adjudicate disputed claims against the bank or non-bank financial intermediary
performing quasi-banking functions and enforce individual liabilities of the stockholders and do
all that is necessary to preserve the assets of such institution and to implement the liquidation
plan approved by the Monetary Board. The Monetary Board shall designate an official of the
Central Bank, or a person of recognized competence in banking or finance, as liquidator who
shall take over the functions of the receiver previously appointed by the Monetary Board under
this Section. The liquidator shall, with all convenient speed, convert the assets of the banking
institution or non-bank financial intermediary performing quasi-banking functions to money or
sell, assign or otherwise dispose of the same to creditors and other parties for the purpose of
paying the debts of such institution and he may, in the name of the bank or non-bank financial
intermediary performing quasi-banking functions, institute such actions as may be necessary in
the appropriate court to collect and recover accounts and assets of such institution.
The provisions of any law to the contrary notwithstanding, the actions of the Monetary
Board under this Section and the second paragraph of Section 34 of this Act shall be final and
executory, and can be set aside by the court only if there is convincing proof that the action is
plainly arbitrary and made in bad faith. No restraining order or injunction shall be issued by the
court enjoining the Central Bank from implementing its actions under this Section and the
second paragraph of Section 34 of this Act, unless there is convincing proof that the action of the
Monetary Board is plainly arbitrary and made in bad faith and the petitioner or plaintiff files with
the clerk or judge of the court in which the action is pending a bond executed in favor of the
Central Bank, in an amount to be fixed by the court. The restraining order or injunction shall be
refused or, if granted, shall be dissolved upon filing by the Central Bank of a bond, which shall
be in the form of cash or Central Bank cashier(s) check, in an amount twice the amount of the
bond of the petitioner or plaintiff conditioned that it will pay the damages which the petitioner or
plaintiff may suffer by the refusal or the dissolution of the injunction. The provisions of Rule 58
of the New Rules of Court insofar as they are applicable and not inconsistent with the provisions
of this Section shall govern the issuance and dissolution of the restraining order or injunction
contemplated in this Section.
Insolvency, under this Act, shall be understood to mean the inability of a bank or non-bank
financial intermediary performing quasi-banking functions to pay its liabilities as they fall due in
the usual and ordinary course of business. Provided, however, That this shall not include the
inability to pay of an otherwise non-insolvent bank or non-bank financial intermediary
performing quasi-banking functions caused by extraordinary demands induced by financial panic
commonly evidenced by a run on the bank or non-bank financial intermediary performing quasi-
banking functions in the banking or financial community.
The appointment of a conservator under Section 28-A of this Act or the appointment of a
receiver under this Section shall be vested exclusively with the Monetary Board, the provision of
any law, general or special, to the contrary notwithstanding. (As amended by PD Nos. 72, 1007,
1771 & 1827, Jan. 16, 1981)
We hold that this advice given by respondent Mendoza on the procedure to
liquidate GENBANK is not the matter contemplated by Rule 6.03 of the Code of
Professional Responsibility. ABA Formal Opinion No. 342 is clear as daylight in
stressing that the drafting, enforcing or interpreting government or agency
procedures, regulations or laws, or briefing abstract principles of law are acts which do
not fall within the scope of the term matter and cannot disqualify.
Secondly, it can even be conceded for the sake of argument that the above act of
respondent Mendoza falls within the definition of matter per ABA Formal Opinion No.
342. Be that as it may, the said act of respondent Mendoza which is the matter involved
in Sp. Proc. No. 107812 is entirely different from the matter involved in Civil Case No.
0096. Again, the plain facts speak for themselves. It is given that respondent Mendoza
had nothing to do with the decision of the Central Bank to liquidate GENBANK. It is also
given that he did not participate in the sale of GENBANK to Allied Bank. The matter
where he got himself involved was in informing Central Bank on
the procedure provided by law to liquidate GENBANK thru the courts and in filing the
necessary petition in Sp. Proc. No. 107812 in the then Court of First Instance. The
subject matter of Sp. Proc. No. 107812, therefore, is not the same nor is related to
but is different from the subject matter in Civil Case No. 0096. Civil Case No. 0096
involves the sequestration of the stocks owned by respondents Tan, et al., in Allied
Bank on the alleged ground that they are ill-gotten. The case does not involve the
liquidation of GENBANK. Nor does it involve the sale of GENBANK to Allied Bank.
Whether the shares of stock of the reorganized Allied Bank are ill-gotten is far
removed from the issue of the dissolution and liquidation of GENBANK. GENBANK
was liquidated by the Central Bank due, among others, to the alleged banking
malpractices of its owners and officers. In other words, the legality of the liquidation of
GENBANK is not an issue in the sequestration cases. Indeed, the jurisdiction of the
PCGG does not include the dissolution and liquidation of banks. It goes without saying
that Code 6.03 of the Code of Professional Responsibility cannot apply to respondent
Mendoza because his alleged intervention while a Solicitor General in Sp. Proc.
No. 107812 is an intervention on a matter different from the matter involved in
Civil Case No. 0096.
Thirdly, we now slide to the metes and bounds of the intervention contemplated
by Rule 6.03. Intervene means, viz.:
1: to enter or appear as an irrelevant or extraneous feature or circumstance . . . 2: to occur, fall, or
come in between points of time or events . . . 3: to come in or between by way of hindrance or
modification: INTERPOSE . . . 4: to occur or lie between two things (Paris, where the same city
lay on both sides of an intervening river . . .)[41]
On the other hand, intervention is defined as:
1: the act or fact of intervening: INTERPOSITION; 2: interference that may affect the
interests of others.[42]
There are, therefore, two possible interpretations of the word intervene. Under
the first interpretation, intervene includes participation in a proceeding even if the
intervention is irrelevant or has no effect or little influence. [43] Under the second
interpretation, intervene only includes an act of a person who has the power to
influence the subject proceedings.[44]We hold that this second meaning is more
appropriate to give to the word intervention under Rule 6.03 of the Code of Professional
Responsibility in light of its history. The evils sought to be remedied by the Rule do not
exist where the government lawyer does an act which can be considered as innocuous
such as x x x drafting, enforcing or interpreting government or agency procedures,
regulations or laws, or briefing abstract principles of law.
In fine, the intervention cannot be insubstantial and insignificant. Originally,
Canon 36 provided that a former government lawyer should not, after his retirement,
accept employment in connection with any matter which he has investigated or
passed upon while in such office or employ. As aforediscussed, the broad sweep of the
phrase which he has investigated or passed upon resulted in unjust disqualification of
former government lawyers. The 1969 Code restricted its latitude, hence, in DR 9-
101(b), the prohibition extended only to a matter in which the lawyer, while in the
government service, had substantial responsibility. The 1983 Model Rules further
constricted the reach of the rule. MR 1.11(a) provides that a lawyer shall not represent a
private client in connection with a matter in which the lawyer participated personally
and substantially as a public officer or employee.
It is, however, alleged that the intervention of respondent Mendoza in Sp. Proc. No.
107812 is significant and substantial. We disagree. For one, the petition in the special
proceedings is an initiatory pleading, hence, it has to be signed by respondent
Mendoza as the then sitting Solicitor General. For another, the record is arid as to
the actual participation of respondent Mendoza in the subsequent proceedings. Indeed,
the case was in slumberville for a long number of years. None of the parties pushed for
its early termination. Moreover, we note that the petition filed merely seeks
the assistance of the court in the liquidation of GENBANK. The principal role of the
court in this type of proceedings is to assist the Central Bank in determining claims of
creditors against the GENBANK. The role of the court is not strictly as a court of justice
but as an agent to assist the Central Bank in determining the claims of creditors. In such
a proceeding, the participation of the Office of the Solicitor General is not that of the
usual court litigator protecting the interest of government.
II
Balancing Policy Considerations
To be sure, Rule 6.03 of our Code of Professional Responsibility represents a
commendable effort on the part of the IBP to upgrade the ethics of lawyers in the
government service. As aforestressed, it is a take-off from similar efforts especially by
the ABA which have not been without difficulties. To date, the legal profession in the
United States is still fine tuning its DR 9-101(b) rule.
In fathoming the depth and breadth of Rule 6.03 of our Code of Professional
Responsibility, the Court took account of various policy considerations to assure
that its interpretation and application to the case at bar will achieve its end without
necessarily prejudicing other values of equal importance. Thus, the rule was not
interpreted to cause a chilling effect on government recruitment of able legal talent.
At present, it is already difficult for government to match compensation offered by the
private sector and it is unlikely that government will be able to reverse that situation.
The observation is not inaccurate that the only card that the government may play to
recruit lawyers is have them defer present income in return for the experience and
contacts that can later be exchanged for higher income in private practice. [45] Rightly,
Judge Kaufman warned that the sacrifice of entering government service would be too
great for most men to endure should ethical rules prevent them from engaging in the
practice of a technical specialty which they devoted years in acquiring and cause the
firm with which they become associated to be disqualified.[46] Indeed, to make
government service more difficult to exit can only make it less appealing to enter.[47]
In interpreting Rule 6.03, the Court also cast a harsh eye on its use as a litigation
tactic to harass opposing counsel as well as deprive his client of competent legal
representation. The danger that the rule will be misused to bludgeon an opposing
counsel is not a mere guesswork. The Court of Appeals for the District of Columbia has
noted the tactical use of motions to disqualify counsel in order to delay proceedings,
deprive the opposing party of counsel of its choice, and harass and embarrass the
opponent, and observed that the tactic was so prevalent in large civil cases in recent
years as to prompt frequent judicial and academic commentary.[48] Even the United
States Supreme Court found no quarrel with the Court of Appeals description of
disqualification motions as a dangerous game.[49] In the case at bar, the new attempt to
disqualify respondent Mendoza is difficult to divine. The disqualification of respondent
Mendoza has long been a dead issue. It was resuscitated after the lapse of many years
and only after PCGG has lost many legal incidents in the hands of respondent
Mendoza. For a fact, the recycled motion for disqualification in the case at bar was
filed more than four years after the filing of the petitions for certiorari, prohibition and
injunction with the Supreme Court which were subsequently remanded to
the Sandiganbayan and docketed as Civil Case Nos. 0096-0099.[50] At the very least,
the circumstances under which the motion to disqualify in the case at bar were refiled
put petitioners motive as highly suspect.
Similarly, the Court in interpreting Rule 6.03 was not unconcerned with the
prejudice to the client which will be caused by its misapplication. It cannot be doubted
that granting a disqualification motion causes the client to lose not only the law firm of
choice, but probably an individual lawyer in whom the client has confidence. [51] The
client with a disqualified lawyer must start again often without the benefit of the work
done by the latter.[52] The effects of this prejudice to the right to choose an effective
counsel cannot be overstated for it can result in denial of due process.
The Court has to consider also the possible adverse effect of a truncated
reading of the rule on the official independence of lawyers in the government
service. According to Prof. Morgan: An individual who has the security of knowing he or
she can find private employment upon leaving the government is free to work
vigorously, challenge official positions when he or she believes them to be in error, and
resist illegal demands by superiors. An employee who lacks this assurance of private
employment does not enjoy such freedom.[53] He adds: Any system that affects the right
to take a new job affects the ability to quit the old job and any limit on the ability to quit
inhibits official independence.[54] The case at bar involves the position of Solicitor
General, the office once occupied by respondent Mendoza. It cannot be overly stressed
that the position of Solicitor General should be endowed with a great degree of
independence. It is this independence that allows the Solicitor General to recommend
acquittal of the innocent; it is this independence that gives him the right to refuse to
defend officials who violate the trust of their office. Any undue dimunition of the
independence of the Solicitor General will have a corrosive effect on the rule of law.
No less significant a consideration is the deprivation of the former
government lawyer of the freedom to exercise his profession. Given the current
state of our law, the disqualification of a former government lawyer may extend to all
members of his law firm.[55] Former government lawyers stand in danger of becoming
the lepers of the legal profession.
It is, however, proffered that the mischief sought to be remedied by Rule 6.03 of the
Code of Professional Responsibility is the possible appearance of impropriety and
loss of public confidence in government. But as well observed, the accuracy of gauging
public perceptions is a highly speculative exercise at best [56] which can lead to untoward
results.[57] No less than Judge Kaufman doubts that the lessening of restrictions as to
former government attorneys will have any detrimental effect on that free flow of
information between the government-client and its attorneys which the canons seek to
protect.[58] Notably, the appearance of impropriety theory has been rejected in the
1983 ABA Model Rules of Professional Conduct[59]and some courts have
abandoned per se disqualification based on Canons 4 and 9 when an actual conflict of
interest exists, and demand an evaluation of the interests of the defendant, government,
the witnesses in the case, and the public.[60]
It is also submitted that the Court should apply Rule 6.03 in all its strictness for it
correctly disfavors lawyers who switch sides. It is claimed that switching sides carries
the danger that former government employee may compromise confidential official
information in the process. But this concern does not cast a shadow in the case at bar.
As afore-discussed, the act of respondent Mendoza in informing the Central Bank on
the procedure how to liquidate GENBANK is a different matter from the subject matter
of Civil Case No. 0005 which is about the sequestration of the shares of respondents
Tan, et al., in Allied Bank. Consequently, the danger that confidential official information
might be divulged is nil, if not inexistent. To be sure, there are no inconsistent sides to
be bothered about in the case at bar. For there is no question that in lawyering for
respondents Tan, et al., respondent Mendoza is not working against the interest of
Central Bank. On the contrary, he is indirectly defending the validity of the action of
Central Bank in liquidating GENBANK and selling it later to Allied Bank. Their interests
coincide instead of colliding. It is for this reason that Central Bank offered no
objection to the lawyering of respondent Mendoza in Civil Case No. 0005 in defense of
respondents Tan, et al. There is no switching of sides for no two sides are
involved.
It is also urged that the Court should consider that Rule 6.03 is intended to
avoid conflict of loyalties, i.e., that a government employee might be subject to a
conflict of loyalties while still in government service.[61] The example given by the
proponents of this argument is that a lawyer who plans to work for the company that he
or she is currently charged with prosecuting might be tempted to prosecute less
vigorously.[62] In the cautionary words of the Association of the Bar Committee in 1960:
The greatest public risks arising from post employment conduct may well
occur during the period of employment through the dampening of aggressive
administration of government policies.[63] Prof. Morgan, however, considers this concern
as probably excessive.[64] He opines x x x it is hard to imagine that a private firm would
feel secure hiding someone who had just been disloyal to his or her last client the
government. Interviews with lawyers consistently confirm that law firms want the best
government lawyers the ones who were hardest to beat not the least qualified or least
vigorous advocates.[65] But again, this particular concern is a non factor in the case
at bar. There is no charge against respondent Mendoza that he advised Central Bank
on how to liquidate GENBANK with an eye in later defending respondents Tan, et al. of
Allied Bank. Indeed, he continues defending both the interests of Central Bank and
respondents Tan, et al. in the above cases.
Likewise, the Court is nudged to consider the need to curtail what is perceived as
the excessive influence of former officials or their clout.[66] Prof. Morgan again
warns against extending this concern too far. He explains the rationale for his
warning, viz: Much of what appears to be an employees influence may actually be the
power or authority of his or her position, power that evaporates quickly upon departure
from government x x x.[67] More, he contends that the concern can be demeaning to
those sitting in government. To quote him further: x x x The idea that, present officials
make significant decisions based on friendship rather than on the merit says more about
the present officials than about their former co-worker friends. It implies a lack of will or
talent, or both, in federal officials that does not seem justified or intended, and it ignores
the possibility that the officials will tend to disfavor their friends in order to avoid even
the appearance of favoritism.[68]
III
The question of fairness
Mr. Justices Panganiban and Carpio are of the view, among others, that the
congruent interest prong of Rule 6.03 of the Code of Professional Responsibility should
be subject to a prescriptive period. Mr. Justice Tinga opines that the rule cannot apply
retroactively to respondent Mendoza. Obviously, and rightly so, they are disquieted by
the fact that (1) when respondent Mendoza was the Solicitor General, Rule 6.03 has not
yet adopted by the IBP and approved by this Court, and (2) the bid to disqualify
respondent Mendoza was made after the lapse of time whose length cannot, by any
standard, qualify as reasonable. At bottom, the point they make relates to the unfairness
of the rule if applied without any prescriptive period and retroactively, at that. Their
concern is legitimate and deserves to be initially addressed by the IBP and our
Committee on Revision of the Rules of Court.
IN VIEW WHEREOF, the petition assailing the resolutions dated July 11, 2001 and
December 5, 2001 of the Fifth Division of the Sandiganbayan in Civil Case Nos. 0096-
0099 is denied.
No cost.
SO ORDERED.
 United States v. Brothers, 856 F. Supp. 370 (M.D. Tenn. 1992)
U.S. District Court for the Middle District of Tennessee - 856 F. Supp. 370 (M.D. Tenn.
1992)
December 18, 1992

856 F. Supp. 370 (1992)

UNITED STATES of America
v.
Russell White BROTHERS, Jr., G. Thomas Nebel, and Thomas White Brothers.
No. 3-92-00102.
United States District Court, M.D. Tennessee, Nashville Division.
December 18, 1992.
*371 *372 Hal McDonough, Wendy Goggin, Asst. U.S. Attys., Nashville, TN, for plaintiff.
Michael E. Terry, Nashville, TN, for defendant Russell Brothers.
Peter J. Strianse, Nashville, TN, J. Sedwick Sellers, III, Washington, DC, Larry D. Thompson,
Atlanta, GA, for defendant Thomas Nebel.
William H. Jeffress, Jr., Paul F. Enzinna, Miller, Cassidy, Larroca & Lewin, Washington, DC,
Nashville, TN, for defendant Thomas Brothers.

MEMORANDUM
HIGGINS, District Judge.
The Court has before it the government's motion (filed September 2, 1992; Docket Entry No. 30)
to disqualify attorney Peter J. Strianse; the memorandum (filed September 2, 1992; Docket Entry
No. 31) in support of the motion, defendant Nebel's response (filed September 10, 1992; Docket
Entry No. 32) to the government's motion; the supplemental memorandum (filed October 9,
1992; Docket Entry No. 87) in support of the defendant Nebel's response; the second
supplemental memorandum (filed November 16, 1992; Docket Entry No. 148) in support of the
defendant Nebel's response; and the government's response (filed November 20, 1992; Docket
Entry No. 155) to the defendant Nebel's second supplemental memorandum.
For the reasons stated below, after reviewing the entire record, including the testimony given at
the evidentiary hearing, the Court grants the government's motion to disqualify Mr. Strianse from
representing Mr. Nebel in this matter.

I. BACKGROUND
Peter J. Strianse was an Assistant United States Attorney in the Middle District of Tennessee
from January, 1987, to June, 1989. Since leaving the United States Attorney's office, Mr.
Strianse has been engaged in the private practice of law in Nashville, Tennessee. The
Government has moved to disqualify Mr. Strianse from representing the defendant, G. Thomas
Nebel, because of actions taken by Mr. Strianse in his capacity as an Assistant United States
Attorney. The parties do not dispute Mr. Strianse's actions so much as the consequences of those
actions.

A. The Search Warrant

In April, 1988, federal and state authorities in Florida were investigating the alleged drug-
trafficking activities of the defendant, Russell White Brothers, Jr., a Nashville resident.[1] In
connection with their investigation, agents of the Drug Enforcement Administration *373 (DEA)
and the Florida Department of Law Enforcement (FDLE) came to Nashville to search Russell
Brothers' house. The agents met with Mr. Strianse[2] who prepared the affidavit and search
warrant from written reports, charts, and oral information given to him by the agents.[3]
At the evidentiary hearing on the government's motion to disqualify, Mr. Strianse described the
preparation as a "cut and paste" job done as a courtesy for the agents to conform their
information to federal court affidavit and search warrant forms. He testified that he received no
information other than that which was given to him to cut and paste. He never met the
confidential informants mentioned in the affidavit, nor does he recall their identities being
disclosed to him. After the search warrant was executed, he did not review the results and had no
further contact with the agents. He further stated that Mr. Nebel's name never was mentioned.
Special Agent Cynthia Schultz of the DEA testified that before meeting with Mr. Strianse she
met with the two unidentified confidential informants mentioned in the affidavit. She discussed
the substance of her conversations with the informants with Mr. Strianse and thinks that she told
him their names. In addition, she testified that when meeting with Mr. Strianse to prepare the
affidavit and search warrant, she discussed what she knew about Russell Brothers' activities, that
Mr. Strianse determined whether there was probable cause for a search warrant and what
information to include in the search warrant.[4] After Russell Brothers' house was searched, Ms.
Schultz spoke with Mr. Strianse about the documents which had been discovered; however, she
did not go over the inventory item by item with him.[5] Ms. Schultz is not sure whether she
mentioned Mr. Nebel's name to Mr. Strianse.
Special Agent William G. Wolfe of the FDLE testified that the written reports and charts given
to Mr. Strianse contained information regarding smuggling and individuals which was not
incorporated into the affidavit and search warrant. Mr. Wolfe also testified that the identity of the
second confidential informant was made known to Mr. Strianse. Mr. Nebel's name was not
mentioned and Mr. Wolfe did not give Mr. Strianse any information regarding Mr. Nebel.

B. The Seizure Warrant

In June, 1988, Mr. Strianse was approached by Nashville DEA Special Agent Mark Keller about
preparing a seizure warrant and affidavit for a Piper Navajo aircraft allegedly used by Russell
Brothers in his drug smuggling activities. Mr. Strianse testified that this, too, was a cut and paste
job in which he took the affidavit from the April search warrant, added information regarding the
pedigree of the airplane, and substituted Mr. Keller for Ms. Schultz as the affiant.[6] However, he
also evaluated the evidence connecting the airplane to the reports given to him by Mr. Wolfe.
When the agents went to seize the airplane, its engines, avionics, and log book were missing. The
agents suspected the owner of the hangar, Robert Hancock, of secreting the missing engines, and
Mr. Keller asked Mr. Strianse if Mr. Hancock could be charged with obstruction of justice. Mr.
Strianse testified that he was going to charge Mr. Hancock with obstruction, but that Joe Brown,
the United States Attorney, told him *374 not to. Mr. Brown had spoken with Charles Ray, Mr.
Hancock's attorney, and had decided not to issue a complaint and warrant in return for Mr.
Hancock turning over the missing items. Mr. Strianse passed this information on to Mr. Keller.
According to Mr. Strianse, that was the extent of his involvement. No long-term strategy was
discussed, and he did not learn any confidential information regarding Russell Brothers. He does
not recall a letter between Mr. Ray and himself memorializing the agreement not to prosecute
Mr. Hancock; however, he does recall telling Mr. Ray by telephone that, although there was no
current intent to prosecute Mr. Hancock, there was nothing to stop the DEA from going to the
grand jury.
Mr. Keller testified that Mr. Strianse's preparation of the seizure warrant and affidavit was a cut
and paste job, and that he did not give Mr. Strianse any confidential information which went into
the seizure warrant. However, in the days following the attempted seizure of the airplane, Mr.
Keller spoke almost daily with Mr. Strianse. DEA internal memoranda (DEA 6's) regarding the
seizure of the airplane and related events were given to the United States Attorney's
office.[7] These memoranda would reflect the information Mr. Keller would have given verbally
to Mr. Strianse,[8] much of which is material, confidential information regarding the investigation
of Russell Brothers and Mr. Hancock.
Mr. Wolfe also testified that Mr. Strianse's preparation of the seizure warrant and affidavit was
mostly a cut and paste job based on the April search warrant and affidavit. However, like the
earlier search warrant and affidavit, they also were based partly on information from a
confidential source named in the affidavit. The investigation into Russell Brothers was still a
Florida matter in June, 1988.
It is based on these acts by Mr. Strianse in relation to the investigation of Russell Brothers that
the government seeks to have him disqualified as Mr. Nebel's attorney in this matter. Briefly
stated, the three defendants in this case are being prosecuted for allegedly laundering money
received as a result of the defendant, Russell Brothers', drug trafficking activities.

II. DISCUSSION
The government bases its motion to disqualify on Canon 9 and Disciplinary Rule 9-101(B) of the
ABA Model Code of Professional Responsibility,[9] and the Ethics in Government Act, 18
U.S.C.App. § 207(a) (1). The Court will address the government's arguments under the ABA
Code before turning its attention to the government's statutory argument.

A. Code of Professional Responsibility

(1) Canon 9
Canon 9 states that "[a] lawyer should avoid even the appearance of professional
impropriety."[10] Disciplinary Rule 9-101(B) requires that "[a] lawyer shall not accept private
employment in a matter in which he had substantial responsibility while he was a public
employee."[11] The government argues that Mr. Strianse's actions meet these standards, and
therefore, he must be disqualified. The defendant, Mr. Nebel, naturally disagrees.
*375 "The district court's power to disqualify an attorney derives from its inherent authority to
supervise the professional conduct of attorneys appearing before it." United States v. Miller, 624
F.2d 1198, 1201 (3d Cir. 1980); Handelman v. Weiss, 368 F. Supp. 258, 263 (S.D.N.Y.1973).
"[W]hen dealing with ethical principles" such as attorney conduct, a court "cannot paint with
broad strokes." United States v. Standard Oil Co., 136 F. Supp. 345, 367 (S.D.N.Y.1955).
Rather, it should look at the specific conduct of the attorney before it, since "the conclusion in a
particular case can be reached only after painstaking analysis of the facts and precise application
of precedent." Id.
While paying close attention to detail, however, a court should not lose sight of the need to
balance the broad and sometimes contrasting policies involved in a motion to disqualify.
"Motions to disqualify opposing counsel are disfavored. Disqualification has a serious and
immediate adverse effect by denying the client his choice of counsel." Society for Good Will to
Retarded Children, Inc. v. Carey, 466 F. Supp. 722, 724 (E.D.N.Y. 1979); cf. United States v.
Phillips, 699 F.2d 798, 801-03 (6th Cir.1983), overruled on other grounds, United States v.
Tosh, 733 F.2d 422 (6th Cir.1984).
Special considerations, both for and against disqualification, arise when a motion is interposed to
disqualify a former government attorney.

If service with the government will tend to sterilize an attorney in too large an area of law for too
long a time, or will prevent him from engaging in practice of the very specialty for which the
government sought his service and if that sterilization will spread to the firm with which he
becomes associated the sacrifices of entering government service will be too great for most men
to make. As for those men willing to make these sacrifices, not only will they and their firms
suffer a restricted practice thereafter, but clients will find it difficult to obtain counsel,
particularly in those specialties and suits dealing with the government.
Standard Oil Co., 136 F. Supp. at 363. On the other hand, policy considerations underlying DR
9-101(B) which militate toward disqualification include

[t]he treachery of switching sides; the safeguarding of confidential governmental information

from future use against the government; the need to discourage government lawyers from
handling particular assignments in such a way as to encourage their own future employment in
regard to those particular matters after leaving government service; and the professional benefit
derived from avoiding the appearance of evil.
ABA Comm. on Ethics and Professional Responsibility, Formal Op. 342 (1975), quoted in In re
Asbestos Cases, 514 F. Supp. 914, 920 (E.D.Va.1981).
With these competing policies in mind, the Court turns to the requirements of Canon 9 which
prohibit a former government attorney from accepting private employment in a matter in which
he had "substantial responsibility" while working for the government. According to the
American Bar Association, a "substantial responsibility" is "a responsibility requiring the official
to become personally involved to an important, material degree, in the investigative or
deliberative processes regarding the transactions or facts in question." ABA Comm. on Ethics
and Professional Responsibility, Formal Op. 342 (1975), quoted in Kadish v. Commodity Futures
Trading Comm'n, 548 F. Supp. 1030, 1032 (N.D.Ill.1982).
However, the Court is conscious that "[t]he A.B.A. itself has recognized that the limitation on
former government attorneys which is now codified in ... DR 9-101(B) `was not intended to have
the effect that its words too literally construed imply.'" ABA Comm. on Professional Ethics and
Grievances, Formal Op. 26 (1930), quoted in Woods v. Covington County Bank, 537 F.2d 804,
812 (5th Cir. 1976). Instead, an attorney should not be disqualified unless his participation would
tend to "taint the underlying trial." W.T. Grant Co. v. Haines, 531 F.2d 671, 678 (2d Cir.1976).
In other words, "while Canon 9 does imply that there be no proof of actual wrongdoing, ... there
must be at least a reasonable possibility that some specifically *376identifiable impropriety did
in fact occur." Woods, 537 F.2d at 813. A mere "appearance of impropriety is simply too slender
a reed on which to rest a disqualification order except in the rarest cases." Board of Educ. of New
York v. Nyquist,590 F.2d 1241, 1247 (2d Cir.1979); United States v. Washington, 797 F.2d 1461,
1466 (9th Cir.1986).[12]
The fatal taint which would require disqualification arises in two types of cases:

(1) where an attorney's conflict of interests in violation of Canons 5[13] and 9 of the Code of
Professional Responsibility undermines the court's confidence in the vigor of the attorney's
representation of his client, or more commonly (2) where the attorney is at least potentially in a
position to use privileged information concerning the other side through prior representation, for
example, in violation of Canons 4[14] and 9, thus giving his present client an unfair advantage.
Nyquist, 590 F.2d at 1246 (citations omitted) (footnotes added). The second type of potential
taint is claimed in this case. The government fears that Mr. Strianse obtained confidential,
privileged information while acting in his capacity as an Assistant United States Attorney which
will give him an unfair advantage in defending Mr. Nebel.
In a case factually similar to the present case, another district court found a former CFTC
attorney had been "personally involved" within the meaning of ABA Formal Opinion 342 to the
extent that he had to be disqualified from the present litigation even though his prior involvement
in the matter had been quite limited. Kadish v. Commodity Futures Trading Comm'n, 548 F.
Supp. 1030 (N.D.Ill.1982). The attorney, John Dolkart, had: (1) "prepared a `boilerplate'
complaint by `cutting and pasting' portions of pleadings in prior CFTC cases;" (2) helped pull
files (but did not read them); (3) briefly discussed in general terms "the federally recognized
accountant-client privilege;" and (4) accompanied a junior staff attorney to court when she
argued a motion to "hold her hand" since she was new and inexperienced. Id. at 1032. Although
that was the extent of his involvement, the district court disqualified Mr. Dolkart because his
activities "call[ed] for the kinds of judgments inherent in lawyering." Id. at 1033.
However, in Woods v. Covington County Bank, supra, the Fifth Circuit Court of Appeals did not
disqualify a Navy reserve attorney who, while on active duty, had conducted a five-day
investigation into an alleged securities fraud scheme aimed at returning prisoners of war. His
investigation "included a day-long meeting in Miami with S.E.C. officials familiar with the ...
proceeding, an examination of the files of the Deputy Attorney General of Alabama, and
interviews with the president and trust officer of the defendant Covington County
Bank." Woods, 537 F.2d at 808-09.
The district court had disqualified the attorney in Woods because of the resulting "appearance of
professional impropriety" in violation of Ethical Consideration 9-3 of the ABA Code of
Professional Responsibility.[15]*377 Id. at 809. The Court of Appeals reversed, concluding that
an appearance of impropriety was insufficient to justify disqualification. Rather, "there must be
at least a reasonable possibility that some specifically identifiable impropriety did in fact
occur" and "the likelihood of public suspicion or obloquy outweighs the social interests which
will be served by a lawyer's continued participation in a particular case." Id. at 813, 813 n. 12.
Similarly, in United States v. Washington, supra, the principal case relied on by both parties to
this action, the district court had disqualified two former Justice Department attorneys, without
holding an evidentiary hearing, finding that the resulting appearance of impropriety outweighed
their client's Sixth Amendment right to counsel of his choice. Washington,797 F.2d at 1464-65.
One of the attorneys, Gerard J. Hinckley, allegedly had received confidential information about
the defendant while working for the government. Id. at 1464. The other attorney, Thomas E.
Kotoske, had supervised the Strike Force on which Mr. Hinckley had worked. Id.
The Ninth Circuit Court of Appeals disagreed with the district court, applying the same rationale
announced by the Fifth Circuit in Woods. The Court had "grave doubts whether an appearance of
impropriety would ever create a sufficiently serious threat to public confidence in the integrity of
the judicial process to justify overriding Sixth Amendment rights." Id.at 1466. However, if Mr.
"Hinckley did in fact receive in confidence information that is material to the government's case
that would give him an advantage in representing Washington, concerns about the integrity of
the judicial process and our adversarial system of justice could possibly outweigh Washington's
Sixth Amendment interests." Id.[16]
The Second Circuit Court of Appeals agrees with this rationale. In United States v. Ostrer, 597
F.2d 337 (2d Cir.1979), the Court upheld the disqualification of a former government attorney
who, while assigned to the Justice Department's Brooklyn Strike Force, personally prosecuted
two men, and called another as a witness at one of their trials, who the government planned to
call as witnesses at the appellant's trial. The former government attorney, Michael B. Pollack,
now represents the appellant. The Court relied on both Canon 4[17] and DR 9-101(B) in affirming
the disqualification. The "matter" was not exactly the same as the prior prosecutions in that the
appellant had not been on trial before. However, the policy "considerations are pertinent not only
where the issues involved in the lawyer's former and present representation are the same, but also
where, as here, the privileged information obtained in the course of the former representation
may be used to impeach or discredit important Government witnesses in a closely related
matter." Id. at 340.
With these policy considerations under DR 9-101(B) in mind, the Court now turns to the specific
facts of this case. There is no reason to believe that Mr. Nebel's name ever was brought to the
attention of Mr. Strianse while he was an Assistant United States Attorney. Nevertheless, there is
sufficient documentary and testimonial evidence linking Mr. Strianse to the investigation of
Russell Brothers and Robert Hancock to justify disqualifying him from representing Mr. Nebel
in this related matter. That Mr. Nebel's name never was mentioned to Mr. Strianse is not critical.
What is critical is the types and amount of confidential information Mr. Strianse was exposed
to,[18] the decisions he made, the likelihood that his knowledge would taint this trial, and the
accompanying public suspicion of the fairness of the judicial process.
*378 At the evidentiary hearing, DEA Special Agents Schultz and Keller testified that they met
with Mr. Strianse for assistance in preparing, respectively, the affidavit and search warrant for
Russell Brothers' house and the affidavit and seizure warrant for the Piper Navajo aircraft.
Although both agents' memories of their specific discussions with Mr. Strianse understandably
were dulled by time, they both testified that the substance of their conversations with Mr.
Strianse were memorialized in internal DEA memoranda.[19] Also submitted under seal is the
affidavit, with attachments, of Joe Brown,[20] the United States Attorney for this district during
the relevant time period, and a July 30, 1991, letter from Robert R. Hancock to Charles R.
Ray.[21]
From the testimony of agents Wolfe, Schultz and Keller,[22] and the government's exhibits, it is
evident that Mr. Strianse has received confidential information which could possibly assist him
in impeaching or discrediting government witnesses on cross-examination. Mr. Strianse knows
the substance of the conversations between the confidential informants and Ms. Schultz, and the
identity of at least one of the informants. He has insights into the investigations of Russell
Brothers and Mr. Hancock. Copies of letters and internal memoranda, including the DEA 6's,
were either sent to his attention or available to him. He had telephone conversations with Mr.
Hancock's attorney, and discussions with Mr. Brown and DEA agents regarding whether to bring
charges against Mr. Hancock. In addition, it was Mr. Strianse who decided what information to
include in the affidavits and warrants, and who made the lawyer-like decision whether probable
cause existed for the warrants to be presented to the Magistrate Judge.
In light of the foregoing, the Court further finds that Mr. Nebel's qualified Sixth Amendment
right to counsel also "must give way [since] its vindication would create a serious risk of
undermining public confidence in the integrity of our legal system." United States v.
Hobson, 672 F.2d 825, 828 (11th Cir.), cert. denied, 459 U.S. 906, 103 S. Ct. 208, 74 L. Ed. 2d
166 (1982). Because of the confidential information shared with Mr. Strianse, there is a great
chance that his continued representation of Mr. Nebel would be perceived by the public as
tainting the fairness of the judicial process.
Therefore, since there is both "a reasonable possibility that some specifically identifiable
impropriety did in fact occur" and "the likelihood of public suspicion ... outweighs the social
interests which will be served by [Mr. Strianse's] continued participation," Mr. Strianse must be
disqualified. See Woods, 537 F.2d at 813, 813 n. 12.

(2) Canon 4
Canon 4 states that "[a] lawyer should preserve the confidences and secrets of a client." This
Canon applies to all attorneys, including former government attorneys. Although the government
did not argue in its motion that Mr. Strianse should be disqualified for violating Canon 4, the
Court has a duty, sua sponte, to examine Mr. Strianse's conduct in light of Canon 4.
The relevant test is clear. "[W]here an attorney represents a party in a matter in which the
adverse party is that attorney's former client, the attorney will be disqualified if the subject
matter[s] of the two representations are `substantially related.'" Westinghouse Elec. Corp. v. Gulf
Oil Corp., 588 F.2d 221, 223 (7th Cir.1978); see also Fund of Funds, Ltd. v. Arthur Andersen &
Co., 567 F.2d 225, 235 (2d Cir.1977); T.C. Theatre Corp. v. Warner Bros. Pictures, Inc., 113 F.
Supp. 265, 268-69 (S.D.N.Y.1953).

[T]he determination of whether there is a substantial relationship turns on the possibility, or

appearance thereof, that confidential information might have been given to the attorney in
relation to the subsequent matter in which disqualification is *379 sought. The rule thus does not
necessarily involve any inquiry into the imponderables involved in the degree of relationship
between the two matters but instead involves a realistic appraisal of the possibility that
confidences had been disclosed in the one matter which will be harmful to the client in the other.

... The evidence need only establish the scope of the legal representation and not the actual
receipt of the allegedly relevant confidential information.
Westinghouse, 588 F.2d at 224.
In order to determine whether to disqualify an attorney under Canon 4, therefore, the Court must
make three inquiries:

Initially, the trial judge must make a factual reconstruction of the scope of the prior legal
representation. Second, it must be determined whether it is reasonable to infer that the
confidential information allegedly given would have been given to a lawyer representing a client
in those matters. Finally, it must be determined whether that information is relevant to the issues
raised in the [current] litigation....
Id. at 225.
The scope of Mr. Strianse's involvement while he was an Assistant United States Attorney has
been reconstructed in detail in previous sections of this memorandum. The government alleges
that, "[a]s the government attorney in the search warrant process, Mr. Strianse would have had
communications with government agents concerning the evidence justifying the search,
including reference to confidential informants, the search itself, and the items taken pursuant to
the search." Memorandum in support at 5. In addition, the government alleges that Mr. Strianse
was privy to "information obtained from confidential informants about Mr. Hancock and his
relationship with Mr. [Russell] Brothers which was provided to Mr. Strianse by the [DEA]."
Government's response at 3. The Court finds that it is reasonable to presume that this information
was given to Mr. Strianse. Indeed, based on the evidentiary hearing testimony of agents Wolfe,
Schultz and Keller, it is highly unlikely that this information was not given to Mr. Strianse.
The presumption that the information was given to Mr. Strianse having been established, the
Court now must determine whether the information is relevant to the issues in the present action.
If so, Mr. Strianse must be disqualified. "Relevance must be gauged by the violations alleged in
the [Superseding Indictment] and assessment of the evidence useful in establishing those
allegations." Westinghouse, 588 F.2d at 226. The heart of the Superseding Indictment is the
laundering, through numerous corporations incorporated by Mr. Nebel and Thomas Brothers, of
the proceeds of Russell Brothers' drug trafficking activities.[23] "Relevance ... must be measured
against the potential avenues of proof and not against the expected." Id. The Court finds that a
sufficient nexus exists between the confidential information regarding Russell Brothers'
activities, relationships and items seized from his home and the allegations in the Superseding
Indictment for the confidential information to be relevant. Mr. Strianse, therefore, must be
disqualified.

B. Ethics in Government Act

The government also has moved to disqualify Mr. Strianse pursuant to the Ethics in Government
Act, 18 U.S.C.App. § 207(a) (1). However, the Court does not need to reach the question of Mr.
Strianse's disqualification under the Act because the issue has been resolved under the Code of
Professional Responsibility.

III. CONCLUSION
For the reasons discussed above, the government's motion to disqualify Mr. Strianse from
representing Mr. Nebel in this matter shall be granted.
The Court notes, however, that Mr. Strianse's disqualification from this matter does not reflect on
his integrity or competence as *380 a lawyer. Honest and competent lawyers can and do disagree
on close questions regarding the interpretation of the Canons of legal ethics which are "not
drawn for Holmes' `bad man' who wants to know just how many corners he may cut without
running into trouble with the law. They are drawn rather for the `good man,' or the ethical man,
as buoys to assist him in charting his professional conduct." Irving K. Kaufman, Comment, The
Former Government Attorney and the Canons of Professional Ethics, 70 Harv.L.Rev. 657, 657
(1957).
An appropriate order shall be entered.
ORDER
In accordance with the memorandum contemporaneously entered, the government's motion (filed
September 2, 1992; Docket Entry No. 30) to disqualify attorney Peter J. Strianse is granted. Mr.
Strianse is disqualified from further representing the defendant, G. Thomas Nebel, in this matter.
It is so ORDERED.
NOTES
[1] Russell Brothers was convicted on October 24, 1988, in Florida state court on RICO, criminal
conspiracy to traffic in cocaine, and cocaine trafficking charges. See Florida v. Russell White
Brothers, No. 88-9469CF10A.
[2] Mr. Strianse was the Organized Crime Drug Task Force Coordinator at the United States
Attorney's office, and therefore, assisted in issuing search warrants in many cases which were
not assigned to him.
[3] Mr. Strianse also signed the motions to seal and unseal the affidavit and search warrant and
the memorandum in support of the motion to seal on behalf of the government.
[4] All the information Ms. Schultz related to Mr. Strianse is memorialized in internal DEA
memoranda (DEA 6's) which have been filed under seal as government Exhibit No. 4 to the
evidentiary hearing on the government's motion to disqualify.
[5] Included in the items found at Mr. Brothers' house were documents which referred to Mr.
Nebel.
[6] Here, too, Mr. Strianse signed the motion to seal the affidavit and seizure warrant on behalf
of the government. These documents are still under seal, which Mr. Strianse states is an
oversight on his part. He says that they should have been unsealed after the seizure warrant was
executed.
[7] These memoranda have been filed under seal as government's Exhibit No. 9 to the
evidentiary hearing on the motion to disqualify.
[8] Although the file reflects that these memoranda were sent to the United States Attorney's
office while Mr. Strianse was there, and were not returned to the DEA until after Mr. Strianse
resigned, Mr. Strianse has no recollection of ever seeing the memoranda.
[9] The ABA Code of Professional Responsibility has been adopted by this Court. See Local
Rule 1(e) (4).
[10] "The Canons are statements of axiomatic norms, expressing in general terms the standards
of professional conduct expected of lawyers.... They embody the general concepts from which ...
the Disciplinary Rules are derived." Model Code of Professional Responsibility, Preliminary
Statement (1983).
[11] "The Disciplinary Rules ... are mandatory in character. The Disciplinary Rules state the
minimum level of conduct below which no lawyer can fall without being subject to disciplinary
action." Model Code of Professional Responsibility, Preliminary Statement (1983).
[12] But see General Motors Corp. v. New York, 501 F.2d 639, 649 (2d Cir.1974); Handelman v.
Weiss, 368 F. Supp. 258, 263-64 (S.D.N.Y.1973). The more recent trend, however, is away from
disqualifying attorneys due to a mere appearance of professional impropriety. "Indeed, the more
frequently a litigant is delayed or otherwise disadvantaged by the unnecessary disqualification of
his lawyer under the appearance of impropriety doctrine, the greater the likelihood of public
suspicion of both the bar and the judiciary. An overly broad application of Canon 9, then, would
ultimately be self-defeating." Woods v. Covington County Bank, 537 F.2d 804, 813 (5th Cir.
1976).
[13] Canon 5 states that "[a] lawyer should exercise independent professional judgment on behalf
of a client."
[14] See discussion infra part II.A.(2).
[15] Ethical Consideration 9-3 states: "After a lawyer leaves judicial office or other public
employment, he should not accept employment in connection with any matter in which he had
substantial responsibility prior to his leaving, since to accept employment would give the
appearance of impropriety even if none exists." Model Code of Professional Responsibility EC
9-3 (1983).
"The Ethical Considerations are aspirational in character and represent the objectives toward
which every member of the profession should strive. They constitute a body of principles upon
which the lawyer can rely for guidance in many specific situations." Model Code of Professional
Responsibility, Preliminary Statement (1983). Unlike Disciplinary Rules, Ethical Considerations
are not enforceable through disciplinary action.
[16] Since the district court had not held an evidentiary hearing, the Court of Appeals vacated
Mr. Washington's conviction and remanded the case to the district court for an evidentiary
hearing on the disqualification question.
[17] See infra part II.A.(2).
[18] Including, possibly, Mr. Nebel's name which was mentioned in the documents seized from
Russell Brothers' house. See supra note 5.
[19] These memoranda have been filed under seal as government exhibits to the evidentiary
hearing on this motion. See supra notes 4 and 6 and accompanying text. A transcript of agents
Schultz and Keller's testimony was filed on October 26, 1992 (Docket Entry No. 126).
[20] Government Exhibit No. 10.
[21] Government Exhibit No. 11.
[22] See supra pp. 372-374.
[23] Other corporations were formed by Eric Ellul, an attorney in Gibraltar. Mr. Ellul is not
named as a defendant in the present action.
 EN BANC
[A.C. No. 4018. March 8, 2005]
OMAR P. ALI, complainant, vs. ATTY. MOSIB A. BUBONG, respondent.
DECISION
PER CURIAM:
This is a verified petition for disbarment[1] filed against Atty. Mosib Ali Bubong for
having been found guilty of grave misconduct while holding the position of Register of
Deeds of Marawi City.
It appears that this disbarment proceeding is an off-shoot of the administrative case
earlier filed by complainant against respondent. In said case, which was initially
investigated by the Land Registration Authority (LRA), complainant charged respondent
with illegal exaction; indiscriminate issuance of Transfer Certificate of Title (TCT) No. T-
2821 in the names of Lawan Bauduli Datu, Mona Abdullah,[2] Ambobae Bauduli Datu,
Matabae Bauduli Datu, Mooamadali Bauduli Datu, and Amenola Bauduli Datu; and
manipulating the criminal complaint filed against Hadji Serad Bauduli Datu and others
for violation of the Anti-Squatting Law. It appears from the records that the Baudali
Datus are relatives of respondent.[3]
The initial inquiry by the LRA was resolved in favor of respondent. The investigating
officer, Enrique Basa, absolved respondent of all the charges brought against him, thus:
It is crystal clear from the foregoing that complainant not only failed to prove his case but that he
has no case at all against respondent Mosib Ali Bubong. Wherefore, premises considered, it is
respectfully recommended that the complaint against respondent be dismissed for lack of merit
and evidence.[4]
The case was then forwarded to the Department of Justice for review and in a
report dated 08 September 1992, then Secretary of Justice Franklin Drilon exonerated
respondent of the charges of illegal exaction and infidelity in the custody of documents.
He, however, found respondent guilty of grave misconduct for his imprudent issuance of
TCT No. T-2821 and manipulating the criminal case for violation of the Anti-Squatting
Law instituted against Hadji Serad Bauduli Datu and the latters co-accused. As a result
of this finding, Secretary Drilon recommended respondents dismissal from service.
On 26 February 1993, former President Fidel V. Ramos issued Administrative Order
No. 41 adopting in toto the conclusion reached by Secretary Drilon and ordering
respondents dismissal from government service. Respondent subsequently questioned
said administrative order before this Court through a petition for certiorari, mandamus,
and prohibition[5] claiming that the Office of the President did not have the authority and
jurisdiction to remove him from office. He also insisted that respondents [6] in that petition
violated the laws on security of tenure and that respondent Reynaldo V. Maulit, then the
administrator of the LRA committed a breach of Civil Service Rules when he abdicated
his authority to resolve the administrative complaint against him (herein respondent).
In a Resolution dated 15 September 1994, we dismissed the petition for failure on
the part of petitioner to sufficiently show that public respondent committed grave abuse
of discretion in issuing the questioned order.[7] Respondent thereafter filed a motion for
reconsideration which was denied with finality in our Resolution of 15 November 1994.
On the basis of the outcome of the administrative case, complainant is now before
us, seeking the disbarment of respondent. Complainant claims that it has become
obvious that respondent had proven himself unfit to be further entrusted with the duties
of an attorney[8] and that he poses a serious threat to the integrity of the legal
profession.[9]
In his Comment, respondent maintains that there was nothing irregular with his
issuance of TCT No. T-2821 in the name of the Bauduli Datus. According to him, both
law[10] and jurisprudence support his stance that it was his ministerial duty, as the
Register of Deeds of Marawi City, to act on applications for land registration on the
basis only of the documents presented by the applicants. In the case of the Bauduli
Datus, nothing in the documents they presented to his office warranted suspicion,
hence, he was duty-bound to issue TCT No. T-2821 in their favor.
Respondent also insists that he had nothing to do with the dismissal of criminal
complaint for violation of the Anti-Squatting Law allegedly committed by Hadji Serad
Abdullah and the latters co-defendants. Respondent explains that his participation in
said case was a result of the two subpoenas duces tecum issued by the investigating
prosecutor who required him to produce the various land titles involved in said dispute.
He further claims that the dismissal of said criminal case by the Secretary of Justice
was based solely on the evidence presented by the parties. Complainants allegation,
therefore, that he influenced the outcome of the case is totally unjustified.
Through a resolution dated 26 June 1995,[11] this Court referred this matter to the
Integrated Bar of the Philippines (IBP) for investigation, report, and recommendation.
Acting on this resolution, the IBP commenced the investigation of this disbarment suit.
On 23 February 1996, Commissioner Victor C. Fernandez issued the following order
relative to the transfer of venue of this case. The pertinent portion of this order provides:
ORDER
When this case was called for hearing, both complainant and respondent appeared.
The undersigned Commissioner asked them if they are willing to have the reception of evidence
vis--vis this case be done in Marawi City, Lanao del Sur before the president of the local IBP
Chapter. Both parties agreed. Accordingly, transmit the records of this case to the Director for
Bar Discipline for appropriate action.[12]
On 30 March 1996, the IBP Board of Governors passed a resolution approving
Commissioner Fernandezs recommendation for the transfer of venue of this
administrative case and directed the Western Mindanao Region governor to designate
the local IBP chapter concerned to conduct the investigation, report, and
recommendation.[13] The IBP Resolution states:
Resolution No. XII-96-153
Adm. Case No. 4018
Omar P. Ali vs. Atty. Mosib A. Bubong
RESOLVED TO APPROVE the recommendation of Commissioner Victor C. Fernandez for the
Transfer of Venue of the above-entitled case and direct the Western Mindanao Region Governor
George C. Jabido to designate the local IBP Chapter concerned to conduct the investigation,
report and recommendation.
Pursuant to this resolution, Atty. Benjamin B. Bernardino, Director for Bar Discipline,
wrote a letter dated 23 October 1996 addressed to Governor George C. Jabido,
President of IBP Cotabato Chapter requesting the latter to receive the evidence in this
case and to submit his recommendation and recommendation as directed by the IBP
Board of Governors.[14]
 In an undated Report and Recommendation, the IBP Cotabato Chapter [15] informed
the IBP Commission on Bar Discipline (CBD) that the investigating panel [16] had sent
notices to both complainant and respondent for a series of hearings but respondent
consistently ignored said notices. The IBP Cotabato Chapter concluded its report by
recommending that respondent be suspended from the practice of law for five years.
On 01 July 1998, respondent filed a motion dated 30 June 1998 praying for the
transmittal of the records of this case to the Marawi City-Lanao del Sur Chapter of the
IBP pursuant to Resolution No. XII-96-153 as well as Commissioner Fernandezs Order
dated 23 February 1996.
Commissioner Fernandez thereafter ordered the investigating panel of IBP
Cotabato Chapter to comment on respondents motion.[17] Complying with this directive,
the panel expressed no opposition to respondents motion for the transmittal of the
records of this case to IBP Marawi City.[18] On 25 September 1998, Commissioner
Fernandez ordered the referral of this case to IBP Marawi City for the reception of
respondents evidence.[19] This order of referral, however, was set aside by the IBP
Board of Governors in its Resolution No. XIII-98-268 issued on 4 December 1998. Said
resolution provides:
RESOLVED to DENY the ORDER of Commissioner Victor C. Fernandez for the transmittal of
the case records of the above-entitled case to Marawi City, rather he is directed to re-evaluate the
recommendation submitted by Cotabato Chapter and report the same to the Board of
Governors.[20]
Prior to the issuance of Resolution No. XIII-98-268, respondent filed on 08 October
1998 a motion praying that the recommendation of the IBP Cotabato Chapter be
stricken from the records.[21] Respondent insists that the investigating panel constituted
by said IBP chapter did not have the authority to conduct the investigation of this case
since IBP Resolution XII-96-153 and Commissioner Fernandezs Order of 23 February
1996 clearly vested IBP Marawi City with the power to investigate this case. Moreover,
he claims that he was never notified of any hearing by the investigating panel of IBP
Cotabato Chapter thereby depriving him of his right to due process.
Complainant opposed[22] this motion arguing that respondent is guilty of laches.
According to complainant, the report and recommendation submitted by IBP Cotabato
Chapter expressly states that respondent was duly notified of the hearings conducted
by the investigating panel yet despite these, respondent did nothing to defend himself.
He also claims that respondent did not even bother to submit his position paper when
he was directed to do so. Further, as respondent is a member of IBP Marawi City
Chapter, complainant maintains that the presence of bias in favor of respondent is
possible. Finally, complainant contends that to refer the matter to IBP Marawi City would
only entail a duplication of the process which had already been completed by IBP
Cotabato Chapter.
In an Order dated 15 October 1999,[23] Commissioner Fernandez directed IBP
Cotabato Chapter to submit proofs that notices for the hearings conducted by the
investigating panel as well as for the submission of the position paper were duly
received by respondent. On 21 February 2000, Atty. Jabido, a member of the IBP
Cotabato Chapter investigating panel, furnished Commissioner Fernandez with a copy
of the panels order dated 4 August 1997.[24] Attached to said order was Registry Receipt
 No. 3663 issued by the local post office. On the lower portion of the registry receipt was
a handwritten notation reading Atty. Mosib A. Bubong.
On 20 April 2001, Commissioner Fernandez ordered Atty. Pedro S. Castillo,
Chairman of the Commission on Bar Discipline for Mindanao, to reevaluate the report
and recommendation submitted by IBP Cotabato Chapter. This directive had the
approval of the IBP Board of Governors through its Resolution No. XIV-2001-271 issued
on 30 June 2001, to wit:
RESOLVED to APPROVE the recommendation of Director Victor C. Fernandez for the
Transfer of Venue of the above-entitled case and direct the CBD Mindanao to conduct an
investigation, re-evaluation, report and recommendation within sixty (60) days from receipt of
notice.[25]
Meanwhile, Bainar A. Ali, informed the CBD Mindanao of the death of her father,
Omar P. Ali, complainant in this case. According to her, her father passed away on 12
June 2002 and that in interest of peace and Islamic brotherhood, she was requesting
the withdrawal of this case.[26]
Subsequently, respondent filed another motion, this time, asking the IBP CBD to
direct the chairman of the Commission on Bar Discipline for Mindanao to designate and
authorize the IBP Marawi City-Lanao del Sur Chapter to conduct an investigation of this
case.[27] This motion was effectively denied by Atty. Pedro S. Castillo in an Order dated
19 July 2002.[28] According to Atty. Castillo
After going over the voluminous records of the case, with special attention made on the report of
the IBP Cotabato City Chapter, the Complaint and the Counter-Affidavit of respondent, the
undersigned sees no need for any further investigation, to be able to make a re-evaluation and
recommendation on the Report of the IBP Chapter of Cotabato City.
WHEREFORE, the Motion to authorize the IBP-Chpater of Marawi City, Zamboanga del Norte
is hereby denied. The undersigned will submit his Report to the Commission on Bar Discipline,
IBP National Office within ten (10) days from date hereof.
In his Report and Recommendation, Atty. Castillo adopted in toto the findings and
conclusion of IBP Cotabato Chapter ratiocinating as follows:
The Complaint for Disbarment is primarily based on the Decision by the Office of the President
in Administrative Case No. 41 dated February 26, 1993, wherein herein respondent was found
guilty of Grave Misconduct in:
a) The imprudent issuance of T.C.T. No. T-2821; and,
b) Manipulating the criminal complaint for violation of the anti-squatting law.
And penalized with dismissal from the service, as Register of Deeds of Marawi City. In the
Comment filed by respondent in the instant Adminsitrative Case, his defense is good faith in the
issuance of T.C.T. No. T-2821 and a denial of the charge of manipulating the criminal complaint
for violation of the anti-squatting law, which by the way, was filed against respondents relatives.
Going over the Decision of the Office of the President in Administrative Case No. 41, the
undersigned finds substantial evidence were taken into account and fully explained, before the
Decision therein was rendered. In other words, the finding of Grave Misconduct on the part of
respondent by the Office of the President was fully supported by evidence and as such carries a
very strong weight in considering the professional misconduct of respondent in the present case.
In the light of the foregoing, the undersigned sees no reason for amending or disturbing the
Report and Recommendation of the IBP Chapter of South Cotabato.[29]
 In a resolution passed on 19 October 2002, the IBP Board of Governors adopted
and approved, with modification, the afore-quoted Report and Recommendation of Atty.
Castillo. The modification pertained solely to the period of suspension from the practice
of law which should be imposed on respondent whereas Atty. Castillo concurred in the
earlier recommendation of IBP Cotabato Chapter for a five-year suspension, the IBP
Board of Governors found a two-year suspension to be proper.
On 17 January 2003, respondent filed a Motion for Reconsideration with the IBP
which the latter denied as by that time, the matter had already been endorsed to this
Court.[30]
The issue thus posed for this Courts resolution is whether respondent may be
disbarred for grave misconduct committed while he was in the employ of the
government. We resolve this question in the affirmative.
The Code of Professional Responsibility does not cease to apply to a lawyer simply
because he has joined the government service. In fact, by the express provision of
Canon 6 thereof, the rules governing the conduct of lawyers shall apply to lawyers in
government service in the discharge of their official tasks. Thus, where a lawyers
misconduct as a government official is of such nature as to affect his qualification as a
lawyer or to show moral delinquency, then he may be disciplined as a member of the
bar on such grounds.[31] Although the general rule is that a lawyer who holds a
government office may not be disciplined as a member of the bar for infractions he
committed as a government official, he may, however, be disciplined as a lawyer if his
misconduct constitutes a violation of his oath a member of the legal profession. [32]
Indeed, in the case of Collantes v. Atty. Vicente C. Renomeron,[33] we ordered the
disbarment of respondent on the ground of his dismissal from government service
because of grave misconduct. Quoting the late Chief Justice Fred Ruiz Castro, we
declared
[A] person takes an oath when he is admitted to the bar which is designed to impress upon him
his responsibilities. He thereby becomes an officer of the court on whose shoulders rests the
grave responsibility of assisting the courts in the proper, fair, speedy and efficient administration
of justice. As an officer of the court he is subject to a rigid discipline that demands that in his
every exertion the only criterion be that truth and justice triumph. This discipline is what has
given the law profession its nobility, its prestige, its exalted place. From a lawyer, to paraphrase
Justice Felix Frankfurter, are expected those qualities of truth-speaking, a high sense of honor,
full candor, intellectual honesty, and the strictest observance of fiduciary responsibility all of
which, throughout the centuries, have been compendiously described as moral character.[34]
Similarly, in Atty. Julito D. Vitriolo, et al. v. Atty. Felina Dasig, [35] this Court found
sufficient basis to disbar respondent therein for gross misconduct perpetrated while she
was the Officer-in-Charge of Legal Services of the Commission on Higher Education. As
we had explained in that case
[A] lawyer in public office is expected not only to refrain from any act or omission which might
tend to lessen the trust and confidence of the citizenry in government, she must also uphold the
dignity of the legal profession at all times and observe a high standard of honesty and fair
dealing. Otherwise said, a lawyer in government service is a keeper of the public faith and is
burdened with high degree of social responsibility, perhaps higher than her brethren in private
practice.[36] (Emphasis supplied)
 In the case at bar, respondents grave misconduct, as established by the Office of
the President and subsequently affirmed by this Court, deals with his qualification as a
lawyer. By taking advantage of his office as the Register of Deeds of Marawi City and
employing his knowledge of the rules governing land registration for the benefit of his
relatives, respondent had clearly demonstrated his unfitness not only to perform the
functions of a civil servant but also to retain his membership in the bar. Rule 6.02 of the
Code of Professional Responsibility is explicit on this matter. It reads:
Rule 6.02 A lawyer in the government service shall not use his public position to promote or
advance his private interests, nor allow the latter to interfere with his public duties.
Respondents conduct manifestly undermined the peoples confidence in the public office
he used to occupy and cast doubt on the integrity of the legal profession. The ill-
conceived use of his knowledge of the intricacies of the law calls for nothing less than
the withdrawal of his privilege to practice law.
As for the letter sent by Bainar Ali, the deceased complainants daughter, requesting
for the withdrawal of this case, we cannot possibly favorably act on the same as
proceedings of this nature cannot be interrupted or terminated by reason of desistance,
settlement, compromise, restitution, withdrawal of the charges or failure of the
complainant to prosecute the same.[37] As we have previously explained in the case
of Irene Rayos-Ombac v. Atty. Orlando A. Rayos:[38]
A case of suspension or disbarment may proceed regardless of interest or lack of interest of the
complainant. What matters is whether, on the basis of the facts borne out by the record, the
charge of deceit and grossly immoral conduct has been duly proven. This rule is premised on the
nature of disciplinary proceedings. A proceeding for suspension or disbarment is not in any sense
a civil action where the complainant is a plaintiff and the respondent lawyer is a defendant.
Disciplinary proceedings involve no private interest and afford no redress for private grievance.
They are undertaken and prosecuted solely for the public welfare. They are undertaken for the
purpose of preserving courts of justice from the official ministration of persons unfit to practice
in them. The attorney is called to answer to the court for his conduct as an officer of the court.
The complainant or the person who called the attention of the court to the attorneys alleged
misconduct is in no sense a party, and has generally no interest in the outcome except as all good
citizens may have in the proper administrative of justice.[39]
WHEREFORE, respondent Atty. Mosib A. Bubong is hereby DISBARRED and his
name is ORDERED STRICKEN from the Roll of Attorneys. Let a copy of this Decision
be entered in the respondents record as a member of the Bar, and notice of the same
be served on the Integrated Bar of the Philippines, and on the Office of the Court
Administrator for circulation to all courts in the country.
SO ORDERED.
 THIRD DIVISION
[A.M. No. MTJ-02-1459. October 14, 2003]
IMELDA Y. MADERADA, complainant, vs. Judge ERNESTO H. MEDIODEA,
12th Municipal Circuit Trial Court, Cabatuan and Maasin, Iloilo, respondent.
DECISION
PANGANIBAN, J.:
Under the Rules of Court, parties to a case in a first-level court may -- without
having to resign from their posts -- conduct their own litigation in person as well as
appear for and on their own behalf as plaintiffs or defendants. However, appearing as
counsel on behalf of a co-plaintiff subjects the employee to administrative liability.
The Case and the Facts
A Complaint[1] dated January 3, 2002, was filed by Imelda Y. Maderada against
Judge Ernesto H. Mediodea of the 12th Municipal Circuit Trial Court (MCTC)
of Cabatuan and Maasin,Iloilo. In the Complaint, the judge was charged with gross
ignorance of the law amounting to grave misconduct for failing to observe and apply the
Revised Rule on Summary Procedure in Civil Case No. 252.[2]
On September 7, 2001, complainant filed before the 12th MCTC
of Cabatuan and Maasin, Iloilo -- presided over by Judge Erlinda Tersol -- an action for
forcible entry with a prayer for preliminary injunction, temporary restraining order (TRO)
and damages[3] covered by the Rule on Summary Procedure. Because complainant was
the clerk of court in the aforesaid sala, Judge Tersol inhibited herself from the
case. Thus, Executive Judge Tito Gustilo designated respondent judge to hear and
decide the case.
In an Order[4] dated September 13, 2001, respondent required the defendants in the
civil case to show cause why the preliminary injunction should not be
granted. Respondent judge scheduled the hearing on September 21, 2001, but
defendants therein filed a Manifestation[5] on September 17, 2001, praying that they be
given an additional period of ten days to file an answer. After the September 21 hearing,
respondent reset the hearing to September 28, 2001.[6] Meanwhile, the defendants filed
their Opposition[7] to complainants prayer for preliminary injunction and TRO. The
September 28 hearing was held in abeyance after the defendants lawyer questioned the
authority of complainant to appear on behalf of and as counsel for her co-
plaintiff.[8] Respondent gave the defendants ten days[9] to file a motion to disqualify
complainant from appearing as counsel and thereafter to complainant to file her
opposition thereto.
In his Order[10] dated October 19, 2001, respondent denied the
defendants Motion[11] to disqualify complainant from appearing on behalf of and as
counsel for her co-plaintiff.
Complainant filed a total of three Motions[12] praying for judgment to be rendered on
the civil case. In an Order[13] dated October 19, 2001, respondent denied complainants
Motions because of the pending hearing for the issuance of a restraining order and an
injunction. He likewise denied the defendants Motion for extension of time to file an
answer.[14] Complainant did not ask for a reconsideration of the denial of her Motion for
Rendition of Judgment.
In his Comment[15] on the Complaint, respondent contends that complainant filed a
Petition for his inhibition after filing two administrative cases against him. He argues that
the mere filing of administrative charges against judges is not a ground for disqualifying
them from hearing cases. In the exercise of their discretion, however, they may
voluntarily disqualify themselves. It is worth noting that respondent later inhibited
himself from Civil Case No. 252. The case was then reassigned to
Judge Loida Maputol of the 14th MCTC, San Miguel-Alimodian-Leon, Iloilo.
Respondent avers that the delay in the resolution of the case cannot be attributed to
him, considering that he was mandated by law and the rules of procedure to pass upon
every motion presented before him.[16] Besides, complainant allegedly failed to present
evidence necessary for the immediate resolution of her prayer for preliminary
injunction.[17] Moreover, she supposedly failed to exhaust the remedies available to her
to question the validity of his Orders. Instead, she tried to compel him to render a
decision on the case.[18]
Respondent likewise refutes complainants assertion that she appeared as counsel
on her own behalf because she could not afford the services of a lawyer. Such claim
was allegedly without basis, since her compensation and other benefits as clerk of court
were more than enough to pay for the services of counsel.[19] He further alleges that she
did not secure authority from this Court to appear as counsel, and that she failed to file
her leave of absence every time she appeared in court.[20]
Evaluation and Recommendation of the
Court Administrator
The OCA agreed with respondent that the issuance of the preliminary injunction
prayed for in the Complaint should first be resolved before judgment should be rendered
in the principal action. However, it opined that the prayer for preliminary injunction
should have been decided within 30 days from the filing thereof. It noted that both the
motion for preliminary injunction and the principal action for forcible entry remained
unresolved even after four months had already lapsed since the filing of Civil Case No.
252.
Accordingly, the OCA recommended that respondent judge be fined in the amount
of P1,000 with a stern warning that a similar infraction in the future would be dealt with
more severely.[21]
It did not, however, find complainant completely faultless. It therefore undertook
another round of investigation, the subject of which was complainants appearance in
court as counsel for herself and on behalf of her co-plaintiff without court authority.
According to the OCA, officials and employees of the judiciary must devote their full
time to government service to ensure the efficient and speedy administration of
justice. Although they are not absolutely prohibited from engaging in a vocation or a
profession, they should do so only with prior approval of this Court. The OCA added that
[e]ngaging in any private business, vocation or profession without prior approval of the
Court is tantamount to moonlighting, which amounts to malfeasance in office.[22]
Thus, it recommended that Complainant Maderada be fined in the amount
of P1,000 for appearing as counsel without authority from this Court, with a stern
warning that any similar infraction in the future would be dealt with more severely. The
OCA also recommended that she be directed to file her application for leaves of
absence on the days she had appeared in court to litigate her case.
The Courts Ruling
 We agree with the findings and recommendations of the OCA, but modify the
penalty to conform to the rules.
Administrative Liability
The Rules of Court clearly provide that actions for forcible entry and
unlawful detainer, regardless of the amount of damages or unpaid rentals sought to be
recovered, shall be governed by the Rule on Summary Procedure.[23] These actions are
summary in nature, because they involve the disturbance of the social order, which
should be restored as promptly as possible.[24] Designed as special civil actions, they
are governed by the Rules on Summary Procedure to disencumber the courts from the
usual formalities of ordinary actions.[25]Accordingly, technicalities or details of procedure
that may cause unnecessary delays should be carefully avoided. [26] The actions for
forcible entry and unlawful detainer are designed to provide expeditious means of
protecting actual possession or the right to possession of the property involved. Both
are time procedures designed to bring immediate relief.[27]
Moreover, as correctly observed by the OCA, in an action for forcible entry, parties
are entitled to the provisional remedy of preliminary injunction.
A preliminary injunction is an order granted at any stage of court actions or
proceedings prior to the judgment or final order, requiring a party or a court, an agency
or a person to refrain from doing a particular act or acts.[28] It may also require the
performance of a particular act or acts, in which case it is known as a preliminary
mandatory injunction.[29] Since this remedy is granted prior to the judgment or final
order, we agree with both the OCA and respondent that the prayer for preliminary
injunction should first be resolved before the main case of forcible entry is decided.
However, respondent should have resolved the Motion for Preliminary Injunction
within 30 days from its filing. There can be no mistaking the clear command of Section
15 of Rule 70 of the Rules of Court, which reads:
Sec. 15. Preliminary injunction -- The court may grant preliminary injunction, in accordance
with the provisions of Rule 58 hereof, to prevent the defendant from committing further acts of
dispossession against the plaintiff.
A possessor deprived of his possession through forcible entry or unlawful detainer may, within
five (5) days from the filing of the complaint, present a motion in the action for forcible entry or
unlawful detainer for the issuance of a writ of preliminary mandatory injunction to restore him in
his possession. The court shall decide the motion within thirty (30) days from the filing thereof.
(Italics ours)
Judges have no other option but to obey. In fact, the provision uses the word shall
to evince its mandatory character. We cannot subscribe to the belief of respondent that
since there was a prayer for the issuance of a preliminary injunction, the main case for
forcible entry would have to wait until after he shall have decided the injunction plea, no
matter how long it took. If that were so, then the main case would lose its summary
nature.
Respondent should have known that since a prayer for preliminary injunction is
merely a provisional remedy in an action for forcible entry, it should lend itself to the
summary nature of the main case. This is the very reason why the Rules of Court
mandate that a preliminary injunction in a forcible entry case be decided within 30 days
from its filing. Preliminary injunctions and TROs are extraordinary remedies provided by
law for the speedy adjudication of an ejectment case in order to save the dispossessed
party from further damage during the pendency of the original action.
Time and time again, this Court has impressed upon judges the need to decide,
promptly and judiciously, cases and other matters pending before their courts. [30] To a
large extent, the publics faith and confidence in the judicial system is boosted by the
judicious and prompt disposition of cases and undermined by any delay
thereof.[31] Judges are thus enjoined to decide cases with dispatch.
Their failure to do so constitutes gross inefficiency and warrants the imposition of
administrative sanction on them. Rule 3.05 of the Code of Judicial Conduct specifically
obliges judges to dispose of the courts business promptly and decide cases within the
required periods. Often have we ruled that their inability to decide a case within the
required period is not excusable and constitutes gross inefficiency. [32] To avoid sanction,
they should ask this Court for an extension and give their reasons for the delay.
Although respondent is correct in asserting that he is mandated to rule on every
motion, he cannot use this excuse to evade the clear command of the rule that cases
should be decided within the prescribed period. This Court notes with concern the
plethora of motions and pleadings filed in this case, which should have been tried under
the Rules of Summary Procedure.Yet, even after four months had lapsed since the filing
of the original Complaint for forcible entry, the prayer for preliminary injunction and the
main case remained unresolved.
Respondent is reminded that in order to meet the deadlines set for deciding cases,
judges should at all times remain in full control of the proceedings in their sala.[33] They
should not be at the mercy of the whims of lawyers and parties, for it is not the latters
convenience that should be the primordial consideration, but the administration of
justice.[34]
To reiterate, judges are bound to dispose of the courts business promptly and to
decide cases within the required period. They are called upon to observe utmost
diligence and dedication in the performance of their judicial functions and duties. As
held by this Court in Gallego v. Acting Judge Doronila:[35]
We cannot countenance such undue delay by a judge especially at a time when the clogging of
court dockets is still the bane of the judiciary whose present leadership has launched an all-out
program to minimize, if not totally eradicate, docket congestion and undue delay in the
disposition of cases. Judges are called upon to observe utmost diligence and dedication in the
performance of their judicial functions and duties.[36]
The prompt disposition of cases becomes even more pronounced when a municipal
trial court is called upon to decide a case governed by the Rules of Summary
Procedure. As eloquently put by Justice Jose C. Vitug, speaking for the Court in Cruz
Jr. v. Judge Joven:[37]
x x x. Being the paradigm of justice in the first instance, a municipal trial court judge, more than
any other colleague on the bench, is the immediate embodiment of how that trust is carried
out. In the evolvement of the public perception on the judiciary, there can likely be no greater
empirical data that influences it than the prompt and proper disposition of cases before the
courts.[38]
We have often held that failure to decide cases and other matters within
the reglementary period constitutes gross inefficiency and warrants the imposition of
administrative sanctions against erring judges. Given the facts of this case, a fine
of P10,000 is appropriate pursuant to current jurisprudence[39] and Rule 140.[40]
As to Complainant Maderada, the OCA recommended that she be fined in the
amount of P1,000 for supposedly engaging in a private vocation or profession without
prior approval of the Court. The Office of the Court Administrator held that her
appearance as counsel for herself and on behalf of her co-plaintiff was tantamount to
moonlighting, a species of malfeasance in office.
Since complainant was charged with engaging in a private vocation or profession
when she appeared on her own behalf in court, the necessary implication was that she
was in the practice of law. We clarify. A partys right to conduct litigation personally is
recognized by law. Section 34 of Rule 138 of the Rules of Court provides:
SEC. 34. By whom litigation conducted. -- In the court of a justice of the peace a party may
conduct his litigation in person, with the aid of an agent or friend appointed by him for that
purpose, or with the aid of an attorney. In any other court, a party may conduct his litigation
personally or by aid of an attorney, and his appearance must be either personal or by a duly
authorized member of the bar.
This provision means that in a litigation, parties may personally do everything during
its progress -- from its commencement to its termination.[41] When they, however, act as
their own attorneys, they are restricted to the same rules of evidence and procedure as
those qualified to practice law; otherwise, ignorance would be unjustifiably
rewarded.[42] Individuals have long been permitted to manage, prosecute and defend
their own actions; and when they do so, they are not considered to be in the practice of
law.[43] One does not practice law by acting for himself any more than he practices
medicine by rendering first aid to himself.[44]
The practice of law, though impossible to define exactly, involves the exercise of a
profession or vocation usually for gain, mainly as attorney by acting in a representative
capacity and as counsel by rendering legal advise to others.[45] Private practice has
been defined by this Court as follows:
x x x. 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 frequent habitual exercise.
Practice of law to fall within the prohibition of statute [referring to the prohibition for judges and
other officials or employees of the superior courts or of the Office of the Solicitor General from
engaging in private practice] has been interpreted as customarily or habitually holding one's self
out to the public, as a lawyer and demanding payment for such services. x x x.[46] (Citations
omitted)
Clearly, in appearing for herself, complainant was not customarily or habitually
holding herself out to the public as a lawyer. Neither was she demanding payment for
such services.Hence, she cannot be said to be in the practice of law.
Blacks Law Dictionary defines profession in the collective sense as referring to the
members of such a vocation.[47] In turn, vocation is defined as a persons regular calling
or business; ones occupation or profession.[48]
The law allows persons who are not lawyers by profession to litigate their own case
in court. The right of complainant to litigate her case personally cannot be taken away
from her. Her being an employee of the judiciary does not remove from her the right to
proceedings in propria persona or to self-representation. To be sure, the lawful exercise
of a right cannot make one administratively liable. Thus, we need not go into a
discussion of the Courts ruling in Cayetano v. Monsod[49] regarding the extent of the
practice of law.
However, it was also clearly established that complainant had appeared on behalf
of her co-plaintiff in the case below, for which act the former cannot be completely
exonerated.Representing oneself is different from appearing on behalf of someone else.
The raison detre for allowing litigants to represent themselves in court will not apply
when a person is already appearing for another party. Obviously, because she was
already defending the rights of another person when she appeared for her co-plaintiff, it
cannot be argued that complainant was merely protecting her rights. That their rights
may be interrelated will not give complainant authority to appear in court. The
undeniable fact remains that she and her co-plaintiff are two distinct individuals. The
former may be impairing the efficiency of public service once she appears for the latter
without permission from this Court.
We cannot countenance any act that would undermine the peoples faith and
confidence in the judiciary, even if we consider that this was the first time complainant
appeared in court, that she appeared for her own sister, and that there was no showing
she did so for a fee. Again we should be reminded that everyone connected with an
office that is charged with the dispensation of justice carries a heavy burden of
responsibility.[50] Given these circumstances, the penalty of reprimand[51] is sufficient.
This Court reiterates its policy not to tolerate or condone any conduct, act or
omission that falls short of the exacting norms of public office, especially on the part of
those expected to preserve the image of the judiciary. Thus, it will not shirk from its
responsibility of imposing discipline upon its employees in order not to diminish the
peoples faith in our justice system. But when the charge has no basis, it will not hesitate
to shield the innocent court employee from any groundless accusation that trifles with
judicial processes,[52] and that serves only to disrupt rather than promote the orderly
administration of justice.[53]
WHEREFORE, Respondent Judge Ernesto H. Mediodea is hereby
found GUILTY of gross inefficiency in failing to observe the reglementary periods in
deciding cases, and is FINED in the amount of P10,000 with a stern warning that a
repetition of the same or of a similar act in the future shall be dealt with more
severely. On the other hand, Imelda Y. Maderada is hereby REPRIMANDED for
appearing as counsel on behalf of a co-plaintiff without court authority and is likewise
warned that a future similar act shall be sanctioned more severely.
SO ORDERED.

INTELLECTUAL PROPERTY ASSIGNED CASE ASSIGNMENT:

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 190065 August 16, 2010

DERMALINE, INC., Petitioner,
vs.
MYRA PHARMACEUTICALS, INC. Respondent.

DECISION

NACHURA, J.:

This is a petition for review on certiorari1 seeking to reverse and set aside the Decision dated August
7, 20092 and the Resolution dated October 28, 20093 of the Court of Appeals (CA) in CA-G.R. SP
No. 108627.

The antecedent facts and proceedings—

On October 21, 2006, petitioner Dermaline, Inc. (Dermaline) filed before the Intellectual Property
Office (IPO) an application for registration of the trademark "DERMALINE DERMALINE, INC."
(Application No. 4-2006011536). The application was published for Opposition in the IPO E-Gazette
on March 9, 2007.

On May 8, 2007, respondent Myra Pharmaceuticals, Inc. (Myra) filed a Verified Opposition4 alleging
that the trademark sought to be registered by Dermaline so resembles its trademark "DERMALIN"
and will likely cause confusion, mistake and deception to the purchasing public. Myra said that the
registration of Dermaline’s trademark will violate Section 1235 of Republic Act (R.A.) No. 8293
(Intellectual Property Code of the Philippines). It further alleged that Dermaline’s use and registration
of its applied trademark will diminish the distinctiveness and dilute the goodwill of Myra’s
"DERMALIN," registered with the IPO way back July 8, 1986, renewed for ten (10) years on July 8,
2006. Myra has been extensively using "DERMALIN" commercially since October 31, 1977, and said
mark is still valid and subsisting.

Myra claimed that, despite Dermaline’s attempt to differentiate its applied mark, the dominant feature
is the term "DERMALINE," which is practically identical with its own "DERMALIN," more particularly
that the first eight (8) letters of the marks are identical, and that notwithstanding the additional letter
"E" by Dermaline, the pronunciation for both marks are identical. Further, both marks have three (3)
syllables each, with each syllable identical in sound and appearance, even if the last syllable of
"DERMALINE" consisted of four (4) letters while "DERMALIN" consisted only of three (3).

Myra also pointed out that Dermaline applied for the same mark "DERMALINE" on June 3, 2003 and
was already refused registration by the IPO. By filing this new application for registration, Dermaline
appears to have engaged in a fishing expedition for the approval of its mark. Myra argued that its
intellectual property right over its trademark is protected under Section 1476 of R.A. No. 8293.

Myra asserted that the mark "DERMALINE DERMALINE, INC." is aurally similar to its own mark
such that the registration and use of Dermaline’s applied mark will enable it to obtain benefit from
Myra’s reputation, goodwill and advertising and will lead the public into believing that Dermaline is, in
any way, connected to Myra. Myra added that even if the subject application was under
Classification 447 for various skin treatments, it could still be connected to the "DERMALIN" mark
under Classification 58 for pharmaceutical products, since ultimately these goods are very closely
related.

In its Verified Answer,9 Dermaline countered that a simple comparison of the trademark
"DERMALINE DERMALINE, INC." vis-à-vis Myra’s "DERMALIN" trademark would show that they
have entirely different features and distinctive presentation, thus it cannot result in confusion,
mistake or deception on the part of the purchasing public. Dermaline contended that, in determining
if the subject trademarks are confusingly similar, a comparison of the words is not the only
determinant, but their entirety must be considered in relation to the goods to which they are
attached, including the other features appearing in both labels. It claimed that there were glaring and
striking dissimilarities between the two trademarks, such that its trademark "DERMALINE
DERMALINE, INC." speaks for itself (Res ipsa loquitur). Dermaline further argued that there could
not be any relation between its trademark for health and beauty services from Myra’s trademark
classified under medicinal goods against skin disorders.

The parties failed to settle amicably. Consequently, the preliminary conference was terminated and
they were directed to file their respective position papers.10

On April 10, 2008, the IPO-Bureau of Legal Affairs rendered Decision No. 2008-7011 sustaining
Myra’s opposition pursuant to Section 123.1(d) of R.A. No. 8293. It disposed—

WHEREFORE, the Verified Opposition is, as it is, hereby SUSTAINED. Consequently, Application
Serial No. 4-2006-011536 for the mark ‘DERMALINE, DERMALINE, INC. Stylized Wordmark’ for
Dermaline, Inc. under class 44 covering the aforementioned goods filed on 21 October 2006, is as it
is hereby, REJECTED.

Let the file wrapper of ‘DERMALINE, DERMALINE, INC. Stylized Wordmark’ subject matter of this
case be forwarded to the Bureau of Trademarks (BOT) for appropriate action in accordance with this
Decision.

SO ORDERED.12

Aggrieved, Dermaline filed a motion for reconsideration, but it was denied under Resolution No.
2009-12(D)13 dated January 16, 2009.

Expectedly, Dermaline appealed to the Office of the Director General of the IPO. However, in an
Order14 dated April 17, 2009, the appeal was dismissed for being filed out of time.

Undaunted, Dermaline appealed to the CA, but it affirmed and upheld the Order dated April 17, 2009
and the rejection of Dermaline’s application for registration of trademark. The CA likewise denied
Dermaline’s motion for reconsideration; hence, this petition raising the issue of whether the CA erred
in upholding the IPO’s rejection of Dermaline’s application for registration of trademark.

The petition is without merit.

A trademark is any distinctive word, name, symbol, emblem, sign, or device, or any combination
thereof, adopted and used by a manufacturer or merchant on his goods to identify and distinguish
them from those manufactured, sold, or dealt by others.15 Inarguably, it is an intellectual property
deserving protection by law. In trademark controversies, each case must be scrutinized according to
its peculiar circumstances, such that jurisprudential precedents should only be made to apply if they
are specifically in point.16

As Myra correctly posits, as a registered trademark owner, it has the right under Section 147 of R.A.
No. 8293 to prevent third parties from using a trademark, or similar signs or containers for goods or
services, without its consent, identical or similar to its registered trademark, where such use would
result in a likelihood of confusion.
In determining likelihood of confusion, case law has developed two (2) tests, the Dominancy Test
and the Holistic or Totality Test.

The Dominancy Test focuses on the similarity of the prevalent features of the competing trademarks
that might cause confusion or deception.17 It is applied when the trademark sought to be registered
contains the main, essential and dominant features of the earlier registered trademark, and
confusion or deception is likely to result. Duplication or imitation is not even required; neither is it
necessary that the label of the applied mark for registration should suggest an effort to imitate. The
important issue is whether the use of the marks involved would likely cause confusion or mistake in
the mind of or deceive the ordinary purchaser, or one who is accustomed to buy, and therefore to
some extent familiar with, the goods in question.18 Given greater consideration are the aural and
visual impressions created by the marks in the public mind, giving little weight to factors like prices,
quality, sales outlets, and market segments.19 The test of dominancy is now explicitly incorporated
into law in Section 155.1 of R.A. No. 8293 which provides—

155.1. Use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered
mark or the same container or a dominant feature thereof in connection with the sale, offering for
sale, distribution, advertising of any goods or services including other preparatory steps necessary to
carry out the sale of any goods or services on or in connection with which such use is likely to cause
confusion, or to cause mistake, or to deceive; (emphasis supplied)

On the other hand, the Holistic Test entails a consideration of the entirety of the marks as applied to
the products, including labels and packaging, in determining confusing similarity. The scrutinizing
eye of the observer must focus not only on the predominant words but also on the other features
appearing in both labels so that a conclusion may be drawn as to whether one is confusingly similar
to the other.20

Relative to the question on confusion of marks and trade names, jurisprudence has noted two (2)
types of confusion, viz: (1) confusion of goods (product confusion), where the ordinarily prudent
purchaser would be induced to purchase one product in the belief that he was purchasing the other;
and (2) confusion of business (source or origin confusion), where, although the goods of the parties
are different, the product, the mark of which registration is applied for by one party, is such as might
reasonably be assumed to originate with the registrant of an earlier product, and the public would
then be deceived either into that belief or into the belief that there is some connection between the
two parties, though inexistent.21

In rejecting the application of Dermaline for the registration of its mark "DERMALINE DERMALINE,
INC.," the IPO applied the Dominancy Test. It declared that both confusion of goods and service and
confusion of business or of origin were apparent in both trademarks. It also noted that, per Bureau
Decision No. 2007-179 dated December 4, 2007, it already sustained the opposition of Myra
involving the trademark "DERMALINE" of Dermaline under Classification 5. The IPO also upheld
Myra’s right under Section 138 of R.A. No. 8293, which provides that a certification of registration of
a mark is prima facie evidence of the validity of the registration, the registrant’s ownership of the
mark, and of the registrant’s exclusive right to use the same in connection with the goods and those
that are related thereto specified in the certificate.

We agree with the findings of the IPO. As correctly applied by the IPO in this case, while there are
no set rules that can be deduced as what constitutes a dominant feature with respect to trademarks
applied for registration; usually, what are taken into account are signs, color, design, peculiar shape
or name, or some special, easily remembered earmarks of the brand that readily attracts and
catches the attention of the ordinary consumer.22
Dermaline’s insistence that its applied trademark "DERMALINE DERMALINE, INC." had differences
"too striking to be mistaken" from Myra’s "DERMALIN" cannot, therefore, be sustained. While it is
true that the two marks are presented differently – Dermaline’s mark is written with the first
"DERMALINE" in script going diagonally upwards from left to right, with an upper case "D" followed
by the rest of the letters in lower case, and the portion "DERMALINE, INC." is written in upper case
letters, below and smaller than the long-hand portion; while Myra’s mark "DERMALIN" is written in
an upright font, with a capital "D" and followed by lower case letters – the likelihood of confusion is
still apparent. This is because they are almost spelled in the same way, except for Dermaline’s mark
which ends with the letter "E," and they are pronounced practically in the same manner in three (3)
syllables, with the ending letter "E" in Dermaline’s mark pronounced silently. Thus, when an ordinary
purchaser, for example, hears an advertisement of Dermaline’s applied trademark over the radio,
chances are he will associate it with Myra’s registered mark.

Further, Dermaline’s stance that its product belongs to a separate and different classification from
Myra’s products with the registered trademark does not eradicate the possibility of mistake on the
part of the purchasing public to associate the former with the latter, especially considering that both
classifications pertain to treatments for the skin.
1avv phi 1

Indeed, the registered trademark owner may use its mark on the same or similar products, in
different segments of the market, and at different price levels depending on variations of the
products for specific segments of the market. The Court is cognizant that the registered trademark
owner enjoys protection in product and market areas that are the normal potential expansion of his
business. Thus, we have held –

Modern law recognizes that the protection to which the owner of a trademark is entitled is not limited
to guarding his goods or business from actual market competition with identical or similar products of
the parties, but extends to all cases in which the use by a junior appropriator of a trade-mark or
trade-name is likely to lead to a confusion of source, as where prospective purchasers would be
misled into thinking that the complaining party has extended his business into the field (see 148 ALR
56 et seq; 53 Am Jur. 576) or is in any way connected with the activities of the infringer; or when it
forestalls the normal potential expansion of his business (v. 148 ALR 77, 84; 52 Am. Jur. 576,
577).23 (Emphasis supplied)

Thus, the public may mistakenly think that Dermaline is connected to or associated with Myra, such
that, considering the current proliferation of health and beauty products in the market, the
purchasers would likely be misled that Myra has already expanded its business through Dermaline
from merely carrying pharmaceutical topical applications for the skin to health and beauty services.

Verily, when one applies for the registration of a trademark or label which is almost the same or that
very closely resembles one already used and registered by another, the application should be
rejected and dismissed outright, even without any opposition on the part of the owner and user of a
previously registered label or trademark. This is intended not only to avoid confusion on the part of
the public, but also to protect an already used and registered trademark and an established
goodwill.24

Besides, the issue on protection of intellectual property, such as trademarks, is factual in nature. The
findings of the IPO, upheld on appeal by the same office, and further sustained by the CA, bear
great weight and deserves respect from this Court. Moreover, the decision of the IPO had already
attained finality when Dermaline failed to timely file its appeal with the IPO Office of the Director
General.
WHEREFORE, the petition is DENIED. The Decision dated August 7, 2009 and the Resolution
dated October 28, 2009 of the Court of Appeals in CA-G.R. SP No. 108627 are AFFIRMED. Costs
against petitioner.

SO ORDERED.