Republic of the Philippines SUPREME COURT Manila EN BANC A.C. No.

7136 August 1, 2007

JOSELANO GUEVARRA, complainant, vs. ATTY. JOSE EMMANUEL EALA, respondent. DECISION PER CURIAM: Joselano Guevarra (complainant) filed on March 4, 2002 a Complaint for Disbarment1 before the Integrated Bar of the Philippines (IBP) Committee on Bar Discipline (CBD) against Atty. Jose Emmanuel M. Eala a.k.a. Noli Eala (respondent) for "grossly immoral conduct and unmitigated violation of the lawyer's oath." In his complaint, Guevarra gave the following account: He first met respondent in January 2000 when his (complainant's) then-fiancee Irene Moje (Irene) introduced respondent to him as her friend who was married to Marianne (sometimes spelled "Mary Ann") Tantoco with whom he had three children. After his marriage to Irene on October 7, 2000, complainant noticed that from January to March 2001, Irene had been receiving from respondent cellphone calls, as well as messages some of which read "I love you," "I miss you," or "Meet you at Megamall." Complainant also noticed that Irene habitually went home very late at night or early in the morning of the following day, and sometimes did not go home from work. When he asked about her whereabouts, she replied that she slept at her parents' house in Binangonan, Rizal or she was busy with her work. In February or March 2001, complainant saw Irene and respondent together on two occasions. On the second occasion, he confronted them following which Irene abandoned the conjugal house. On April 22, 2001, complainant went uninvited to Irene's birthday celebration at which he saw her and respondent celebrating with her family and friends. Out of embarrassment, anger and humiliation, he left the venue immediately. Following that incident, Irene went to the conjugal house and hauled off all her personal belongings, pieces of furniture, and her share of the household appliances. Complainant later found, in the master's bedroom, a folded social card bearing the words "I Love You" on its face, which card when unfolded contained a handwritten letter dated October 7, 2000, the day of his wedding to Irene, reading: My everdearest Irene, By the time you open this, you'll be moments away from walking down the aisle. I will say a prayer for you that you may find meaning in what you're about to do.

Sometimes I wonder why we ever met. Is it only for me to find fleeting happiness but experience eternal pain? Is it only for us to find a true love but then lose it again? Or is it because there's a bigger plan for the two of us? I hope that you have experienced true happiness with me. I have done everything humanly possible to love you. And today, as you make your vows . . . I make my own vow to YOU! I will love you for the rest of my life. I loved you from the first time I laid eyes on you, to the time we spent together, up to the final moments of your single life. But more importantly, I will love you until the life in me is gone and until we are together again. Do not worry about me! I will be happy for you. I have enough memories of us to last me a lifetime. Always remember though that in my heart, in my mind and in my soul, YOU WILL ALWAYS . . . AND THE WONDERFUL THINGS YOU DO! BE MINE . . . . AND MINE ALONE, and I WILL ALWAYS BE YOURS AND YOURS ALONE! I LOVE YOU FOREVER, I LOVE YOU FOR ALWAYS. AS LONG AS I'M LIVING MY TWEETIE YOU'LL BE!"2 Eternally NOLI yours,

Complainant soon saw respondent's car and that of Irene constantly parked at No. 71-B 11th Street, New Manila where, as he was to later learn sometime in April 2001, Irene was already residing. He also learned still later that when his friends saw Irene on or about January 18, 2002 together with respondent during a concert, she was pregnant. In his ANSWER,3 respondent admitted having sent the I LOVE YOU card on which the above-quoted letter was handwritten. On paragraph 14 of the COMPLAINT reading: 14. Respondent and Irene were even FLAUNTING THEIR ADULTEROUS RELATIONSHIP as they attended social functions together. For instance, in or about the third week of September 2001, the couple attended the launch of the "Wine All You Can" promotion of French wines, held at the Mega Strip of SM Megamall B at Mandaluyong City. Their attendance was reported in Section B of the Manila Standard issue of 24 September 2001, on page 21. Respondent and Irene were photographed together; their picture was captioned: "Irene with Sportscaster Noli Eala." A photocopy of the report is attached as Annex C.4 (Italics and emphasis in the original; CAPITALIZATION of the phrase "flaunting their adulterous relationship" supplied), respondent, in his ANSWER, stated: 4. Respondent specifically denies having ever flaunted an adulterous relationship with Irene as alleged in paragraph 14 of the Complaint, the truth of the matter being that their relationship was low profile and known only to the immediate members of their respective families, and that Respondent, as far as the general

public was concerned, was still known to be legally married to Mary Anne Tantoco.5 (Emphasis and underscoring supplied) On paragraph 15 of the COMPLAINT reading: 15. Respondent's adulterous conduct with the complainant's wife and his apparent abandoning or neglecting of his own family, demonstrate his gross moral depravity, making him morally unfit to keep his membership in the bar. He flaunted his aversion to the institution of marriage, calling it a "piece of paper." Morally reprehensible was his writing the love letter to complainant's bride on the very day of her wedding, vowing to continue his love for her "until we are together again," as now they are.6 (Underscoring supplied), respondent stated in his ANSWER as follows: 5. Respondent specifically denies the allegations in paragraph 15 of the Complaint regarding his adulterous relationship and that his acts demonstrate gross moral depravity thereby making him unfit to keep his membership in the bar, the reason being that Respondent's relationship with Irene was not under scandalous circumstances and that as far as his relationship with his own family: 5.1 Respondent has maintained a civil, cordial and peaceful relationship with [his wife] Mary Anne as in fact they still occasionally meet in public, even if Mary Anne is aware of Respondent's special friendship with Irene. xxxx 5.5 Respondent also denies that he has flaunted his aversion to the institution of marriage by calling the institution of marriage a mere piece of paper because his reference [in his above-quoted handwritten letter to Irene] to the marriage between Complainant and Irene as a piece of paper was merely with respect to the formality of the marriage contract.7 (Emphasis and underscoring supplied) Respondent admitted8 paragraph 18 of the COMPLAINT reading: 18. The Rules of Court requires lawyers to support the Constitution and obey the laws. The Constitution regards marriage as an inviolable social institution and is the foundation of the family (Article XV, Sec. 2).9 And on paragraph 19 of the COMPLAINT reading: 19. Respondent's grossly immoral conduct runs afoul of the Constitution and the laws he, as a lawyer, has been sworn to uphold. In pursuing obsessively his illicit love for the complainant's wife, he mocked the institution of marriage, betrayed his own family, broke up the complainant's marriage, commits adultery with his wife, and degrades the legal profession.10 (Emphasis and underscoring supplied), respondent, in his ANSWER, stated: 7. Respondent specifically denies the allegations in paragraph 19 of the Complaint, the reason being that under the circumstances the acts of Respondent with respect to his purely personal and low profile special relationship with Irene is neither under scandalous circumstances nor tantamount to grossly immoral conduct as would be a ground for disbarment pursuant to Rule 138, Section 27 of the Rules of Court.11 (Emphasis and underscoring supplied)

To respondent's ANSWER, complainant filed a REPLY,12 alleging that Irene gave birth to a girl and Irene named respondent in the Certificate of Live Birth as the girl's father. Complainant attached to the Reply, as Annex "A," a copy of a Certificate of Live Birth13 bearing Irene's signature and naming respondent as the father of her daughter Samantha Irene Louise Moje who was born on February 14, 2002 at St. Luke's Hospital. Complainant's REPLY merited a REJOINDER WITH MOTION TO DISMISS14 dated January 10, 2003 from respondent in which he denied having "personal knowledge of the Certificate of Live Birth attached to the complainant's Reply."15 Respondent moved to dismiss the complaint due to the pendency of a civil case filed by complainant for the annulment of his marriage to Irene, and a criminal complaint for adultery against respondent and Irene which was pending before the Quezon City Prosecutor's Office. During the investigation before the IBP-CBD, complainant's Complaint-Affidavit and Reply to Answer were adopted as his testimony on direct examination. 16 Respondent's counsel did not cross-examine complainant.17 After investigation, IBP-CBD Investigating Commissioner Milagros V. San Juan, in a 12page REPORT AND RECOMMENDATION18 dated October 26, 2004, found the charge against respondent sufficiently proven. The Commissioner thus recommended19 that respondent be disbarred for violating Rule 1.01 of Canon 1 of the Code of Professional Responsibility reading: Rule 1.01: A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct (Underscoring supplied), and Rule 7.03 of Canon 7 of the same Code reading: Rule 7.03: A lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor shall he, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession. (Underscoring supplied) The IBP Board of Governors, however, annulled and set aside the Recommendation of the Investigating Commissioner and accordingly dismissed the case for lack of merit, by Resolution dated January 28, 2006 briefly reading: RESOLUTION NO. XVII-2006-06 CBD Joselano Atty. Jose a.k.a. Noli Eala Case C. Emmanuel No. Guevarra M. 02-936 vs. Eala

RESOLVED to ANNUL and SET ASIDE, as it is hereby ANNULLED AND SET ASIDE, the Recommendation of the Investigating Commissioner, and to APPROVE the DISMISSAL of the above-entitled case for lack of merit.20 (Italics and emphasis in the original) Hence, the present petition21 of complainant before this Court, filed pursuant to Section 12 (c), Rule 13922 of the Rules of Court. The petition is impressed with merit.

Oddly enough, the IBP Board of Governors, in setting aside the Recommendation of the Investigating Commissioner and dismissing the case for lack of merit, gave no reason therefor as its above-quoted 33-word Resolution shows. Respondent contends, in his Comment23 on the present petition of complainant, that there is no evidence against him.24 The contention fails. As the IBP-CBD Investigating Commissioner observed: While it may be true that the love letter dated October 7, 2000 (Exh. "C") and the news item published in the Manila Standard (Exh. "D"), even taken together do not sufficiently prove that respondent is carrying on an adulterous relationship with complainant's wife, there are other pieces of evidence on record which support the accusation of complainant against respondent. It should be noted that in his Answer dated 17 October 2002, respondent through counsel made the following statements to wit: "Respondent specifically denies having [ever] flaunted an adulterous relationship with Irene as alleged in paragraph [14] of the Complaint, the truth of the matter being [that] their relationship was low profile and known only to immediate members of their respective families . . . , and Respondent specifically denies the allegations in paragraph 19 of the complaint, the reason being that under the circumstances the acts of the respondents with respect to his purely personal and low profile relationship with Irene is neither under scandalous circumstances nor tantamount to grossly immoral conduct . . ." These statements of respondent in his Answer are an admission that there is indeed a "special" relationship between him and complainant's wife, Irene, [which] taken together with the Certificate of Live Birth of Samantha Louise Irene Moje (Annex "H-1") sufficiently prove that there was indeed an illicit relationship between respondent and Irene which resulted in the birth of the child "Samantha". In the Certificate of Live Birth of Samantha it should be noted that complainant's wife Irene supplied the information that respondent was the father of the child. Given the fact that the respondent admitted his special relationship with Irene there is no reason to believe that Irene would lie or make any misrepresentation regarding the paternity of the child. It should be underscored that respondent has not categorically denied that he is the father of Samantha Louise Irene Moje.25 (Emphasis and underscoring supplied) Indeed, from respondent's Answer, he does not deny carrying on an adulterous relationship with Irene, "adultery" being defined under Art. 333 of the Revised Penal Code as that "committed by any married woman who shall have sexual intercourse with a man not her husband and by the man who has carnal knowledge of her, knowing her to be married, even if the marriage be subsequently declared void."26 (Italics supplied) What respondent denies is having flaunted such relationship, he maintaining that it was "low profile and known only to the immediate members of their respective families." In other words, respondent's denial is a negative pregnant, a denial pregnant with the admission of the substantial facts in the pleading responded to which are not squarely denied. It was in effect an admission of the averments it was directed at. Stated otherwise, a negative pregnant is a form of negative expression which carries with it in affirmation or at least an implication of some kind favorable to the adverse party. It is a denial pregnant with an admission of the substantial facts alleged in the pleading. Where a fact is alleged with qualifying or modifying language and the words of the allegation as so qualified or modified are literally denied, it has been held that the qualifying

circumstances alone are denied while the fact itself is admitted.27 (Citations omitted; emphasis and underscoring supplied) A negative pregnant too is respondent's denial of having "personal knowledge" of Irene's daughter Samantha Louise Irene Moje's Certificate of Live Birth. In said certificate, Irene named respondent a "lawyer," 38 years old as the child's father. And the phrase "NOT MARRIED" is entered on the desired information on "DATE AND PLACE OF MARRIAGE." A comparison of the signature attributed to Irene in the certificate 28 with her signature on the Marriage Certificate29 shows that they were affixed by one and the same person. Notatu dignum is that, as the Investigating Commissioner noted, respondent never denied being the father of the child. Franklin A. Ricafort, the records custodian of St. Luke's Medical Center, in his January 29, 2003 Affidavit30 which he identified at the witness stand, declared that Irene gave the information in the Certificate of Live Birth that the child's father is "Jose Emmanuel Masacaet Eala," who was 38 years old and a lawyer.31 Without doubt, the adulterous relationship between respondent and Irene has been sufficiently proven by more than clearly preponderant evidence that evidence adduced by one party which is more conclusive and credible than that of the other party and, therefore, has greater weight than the other32 which is the quantum of evidence needed in an administrative case against a lawyer. Administrative cases against lawyers belong to a class of their own. They are distinct from and they may proceed independently of civil and criminal cases. . . . of proof for these types of cases differ. In a criminal case, proof beyond reasonable doubt is necessary; in an administrative case for disbarment or suspension, "clearly preponderant evidence" is all that is required.33 (Emphasis supplied) Respondent insists, however, that disbarment does not lie because his relationship with Irene was not, under Section 27 of Rule 138 of the Revised Rules of Court, reading: SEC. 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 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. The disbarment or suspension of a member of the Philippine Bar by a competent court or other disciplinatory agency in a foreign jurisdiction where he has also been admitted as an attorney is a ground for his disbarment or suspension if the basis of such action includes any of the acts hereinabove enumerated. The judgment, resolution or order of the foreign court or disciplinary agency shall be prima facie evidence of the ground for disbarment or suspension (Emphasis and underscoring supplied), under scandalous circumstances.34 The immediately-quoted Rule which provides the grounds for disbarment or suspension uses the phrase "grossly immoral conduct," not "under scandalous circumstances."

Sexual intercourse under scandalous circumstances is, following Article 334 of the Revised Penal Code reading: ART. 334. Concubinage. - Any husband who shall keep a mistress in the conjugal dwelling, or, shall have sexual intercourse, under scandalous circumstances, with a woman who is not his wife, or shall cohabit with her in any other place, shall be punished by prision correccional in its minimum and medium periods. x x x x, an element of the crime of concubinage when a married man has sexual intercourse with a woman elsewhere. "Whether a lawyer's sexual congress with a woman not his wife or without the benefit of marriage should be characterized as 'grossly immoral conduct' depends on the surrounding circumstances."35 The case at bar involves a relationship between a married lawyer and a married woman who is not his wife. It is immaterial whether the affair was carried out discreetly. Apropos is the following pronouncement of this Court in Vitug v. Rongcal:36 On the charge of immorality, respondent does not deny that he had an extramarital affair with complainant, albeit brief and discreet, and which act is not "so corrupt and false as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree" in order to merit disciplinary sanction. We disagree. xxxx While it has been held in disbarment cases that the mere fact of sexual relations between two unmarried adults is not sufficient to warrant administrative sanction for such illicit behavior, it is not so with respect to betrayals of the marital vow of fidelity. Even if not all forms of extra-marital relations are punishable under penal law, sexual relations outside marriage is considered disgraceful and immoral as it manifests deliberate disregard of the sanctity of marriage and the marital vows protected by the Constitution and affirmed by our laws.37 (Emphasis and underscoring supplied) And so is the pronouncement in Tucay v. Atty. Tucay:38 The Court need not delve into the question of whether or not the respondent did contract a bigamous marriage . . . It is enough that the records of this administrative case substantiate the findings of the Investigating Commissioner, as well as the IBP Board of Governors, i.e., that indeed respondent has been carrying on an illicit affair with a married woman, a grossly immoral conduct and indicative of an extremely low regard for the fundamental ethics of his profession. This detestable behavior renders him regrettably unfit and undeserving of the treasured honor and privileges which his license confers upon him.39 (Underscoring supplied) Respondent in fact also violated the lawyer's oath he took before admission to practice law which goes: I _________, having been permitted to continue in the practice of law in the Philippines, do solemnly swear that I recognize the supreme authority of the Republic of the Philippines; I will support its Constitution and obey the laws as well as the legal orders of the duly constituted authorities therein; I will do no falsehood, nor consent to the doing of any in court; I will not wittingly or

willingly promote or sue any groundless, false or unlawful suit, nor give aid nor consent to the same; I will delay no man for money or malice, and will conduct myself as a lawyer according to the best of my knowledge and discretion with all good fidelity as well as to the courts as to my clients; and I impose upon myself this voluntary obligation without any mental reservation or purpose of evasion. So help me God. (Underscoring supplied) Respondent admittedly is aware of Section 2 of Article XV (The Family) of the Constitution reading: Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State. In this connection, the Family Code (Executive Order No. 209), which echoes this constitutional provision, obligates the husband and the wife "to live together, observe mutual love, respect and fidelity, and render mutual help and support."40 Furthermore, respondent violated Rule 1.01 of Canon 1 of the Code of Professional Responsibility which proscribes a lawyer from engaging in "unlawful, dishonest, immoral or deceitful conduct," and Rule 7.03 of Canon 7 of the same Code which proscribes a lawyer from engaging in any "conduct that adversely reflects on his fitness to practice law." Clutching at straws, respondent, during the pendency of the investigation of the case before the IBP Commissioner, filed a Manifestation41 on March 22, 2005 informing the IBP-CBD that complainant's petition for nullity of his (complainant's) marriage to Irene had been granted by Branch 106 of the Quezon City Regional Trial Court, and that the criminal complaint for adultery complainant filed against respondent and Irene "based on the same set of facts alleged in the instant case," which was pending review before the Department of Justice (DOJ), on petition of complainant, had been, on motion of complainant, withdrawn. The Secretary of Justice's Resolution of January 16, 2004 granting complainant's Motion to Withdraw Petition for Review reads: Considering that the instant motion was filed before the final resolution of the petition for review, we are inclined to grant the same pursuant to Section 10 of Department Circular No. 70 dated July 3, 2000, which provides that "notwithstanding the perfection of the appeal, the petitioner may withdraw the same at any time before it is finally resolved, in which case the appealed resolution shall stand as though no appeal has been taken."42 (Emphasis supplied by complainant) That the marriage between complainant and Irene was subsequently declared void ab initio is immaterial. The acts complained of took place before the marriage was declared null and void.43 As a lawyer, respondent should be aware that a man and a woman deporting themselves as husband and wife are presumed, unless proven otherwise, to have entered into a lawful contract of marriage. 44 In carrying on an extra-marital affair with Irene prior to the judicial declaration that her marriage with complainant was null and void, and despite respondent himself being married, he showed disrespect for an institution held sacred by the law. And he betrayed his unfitness to be a lawyer. As for complainant's withdrawal of his petition for review before the DOJ, respondent glaringly omitted to state that before complainant filed his December 23, 2003 Motion to Withdraw his Petition for Review, the DOJ had already promulgated a Resolution on September 22, 2003 reversing the dismissal by the Quezon City Prosecutor's Office of

complainant's complaint for adultery. In reversing the City Prosecutor's Resolution, DOJ Secretary Simeon Datumanong held: Parenthetically the totality of evidence adduced by complainant would, in the fair estimation of the Department, sufficiently establish all the elements of the offense of adultery on the part of both respondents. Indeed, early on, respondent Moje conceded to complainant that she was going out on dates with respondent Eala, and this she did when complainant confronted her about Eala's frequent phone calls and text messages to her. Complainant also personally witnessed Moje and Eala having a rendezvous on two occasions. Respondent Eala never denied the fact that he knew Moje to be married to complainant[.] In fact, he (Eala) himself was married to another woman. Moreover, Moje's eventual abandonment of their conjugal home, after complainant had once more confronted her about Eala, only served to confirm the illicit relationship involving both respondents. This becomes all the more apparent by Moje's subsequent relocation in No. 71-B, 11th Street, New Manila, Quezon City, which was a few blocks away from the church where she had exchange marital vows with complainant. It was in this place that the two lovers apparently cohabited. Especially since Eala's vehicle and that of Moje's were always seen there. Moje herself admits that she came to live in the said address whereas Eala asserts that that was where he held office. The happenstance that it was in that said address that Eala and Moje had decided to hold office for the firm that both had formed smacks too much of a coincidence. For one, the said address appears to be a residential house, for that was where Moje stayed all throughout after her separation from complainant. It was both respondent's love nest, to put short; their illicit affair that was carried out there bore fruit a few months later when Moje gave birth to a girl at the nearby hospital of St. Luke's Medical Center. What finally militates against the respondents is the indubitable fact that in the certificate of birth of the girl, Moje furnished the information that Eala was the father. This speaks all too eloquently of the unlawful and damning nature of the adulterous acts of the respondents. Complainant's supposed illegal procurement of the birth certificate is most certainly beside the point for both respondents Eala and Moje have not denied, in any categorical manner, that Eala is the father of the child Samantha Irene Louise Moje.45 (Emphasis and underscoring supplied) It bears emphasis that adultery is a private offense which cannot be prosecuted de oficio and thus leaves the DOJ no choice but to grant complainant's motion to withdraw his petition for review. But even if respondent and Irene were to be acquitted of adultery after trial, if the Information for adultery were filed in court, the same would not have been a bar to the present administrative complaint. Citing the ruling in Pangan v. Ramos,46 viz: x x x The acquittal of respondent Ramos [of] the criminal charge is not a bar to these [administrative] proceedings. The standards of legal profession are not satisfied by conduct which merely enables one to escape the penalties of x x x criminal law. Moreover, this Court, in disbarment proceedings is acting in an entirely different capacity from that which courts assume in trying criminal case47 (Italics in the original), this Court in Gatchalian Promotions Talents Pools, Inc. v. Atty. Naldoza,48 held: Administrative cases against lawyers belong to a class of their own. They are distinct from and they may proceed independently of civil and criminal cases.

WHEREFORE, the petition is GRANTED. Resolution No. XVII-2006-06 passed on January 28, 2006 by the Board of Governors of the Integrated Bar of the Philippines is ANNULLED and SET ASIDE. Respondent, Atty. Jose Emmanuel M. Eala, is DISBARRED for grossly immoral conduct, violation of his oath of office, and violation of Canon 1, Rule 1.01 and Canon 7, Rule 7.03 of the Code of Professional Responsibility. Let a copy of this Decision, which is immediately executory, be made part of the records of respondent in the Office of the Bar Confidant, Supreme Court of the Philippines. And let copies of the Decision be furnished the Integrated Bar of the Philippines and circulated to all courts. This Decision takes effect immediately. SO ORDERED. Puno, Chief Justice, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, AustriaMartinez, Corona, Carpio-Morales, Azcuna, Tinga, Chico-Nazario, Garcia, Velasco, Jr., Nachura, JJ., concur.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION A.C. No. 6313 September 7, 2006

CATHERINE JOIE P. VITUG, complainant, vs. ATTY. DIOSDADO M. RONGCAL, respondent.

DECISION TINGA, J.: The allegations raised in this complaint for disbarment are more sordid, if not tawdry, from the usual. As such, close scrutiny of these claims is called for. Disbarment and suspension of a lawyer, being the most severe forms of disciplinary sanction, should be imposed with great caution and only in those cases where the misconduct of the lawyer as an officer of the court and a member of the bar is established by clear, convincing and satisfactory proof.1 Under consideration is the administrative complaint for disbarment filed by Catherine Joie P. Vitug (complainant) against Atty. Diosdado M. Rongcal (respondent). A classic case of "he said, she said," the parties' conflicting versions of the facts as culled from the records are hereinafter presented. Complainant narrates that she and respondent met sometime in December 2000 when she was looking for a lawyer to assist her in suing Arnulfo Aquino ("Aquino"), the biological father of her minor daughter, for support. Her former classmate who was then a Barangay Secretary referred her to respondent. After several meetings with complainant, respondent sent a demand letter2 in her behalf to Aquino wherein he asked for the continuance of the monthly child support Aquino used to give, plus no less than P300,000.00 for the surgical operation their daughter would need for her congenital heart ailment. At around this point, by complainant's own admission, she and respondent started having a sexual relationship. She narrates that this twist in the events began after respondent started calling on her shortly after he had sent the demand letter in her behalf. Respondent allegedly started courting her, giving her financial aid. Soon he had progressed to making sexual advances towards complainant, to the accompaniment of sweet inducements such as the promise of a job, financial security for her daughter, and his services as counsel for the prospective claim for support against Aquino. Complainant acknowledges that she succumbed to these advances, assured by respondent's claim that the lawyer was free to marry her, as his own marriage had already been annulled. On 9 February 2001, respondent allegedly convinced complainant to sign an Affidavit of Disclaimer3 ("Affidavit") categorically stating that even as Aquino was denoted as the father in the birth certificate4 of her daughter, he was, in truth, not the real father. She was not allowed to read the contents of the Affidavit, she claims. Respondent supposedly assured her that the document meant nothing, necessary as it was the only way that Aquino would agree to give her daughter medical and educational support. Respondent purportedly assured complainant that despite the Affidavit, she could still pursue a case against Aquino in the future because the Affidavit is not a public document. Because she

completely trusted him at this point, she signed the document "without even taking a glance at it."5 On 14 February 2001, respondent allegedly advised complainant that Aquino gave him P150,000.00 cash and P58,000.00 in two (2) postdated checks to answer for the medical expenses of her daughter. Instead of turning them over to her, respondent handed her his personal check6 in the amount of P150,000.00 and promised to give her the balance of P58,000.00 soon thereafter. However, sometime in April or May 2001, respondent informed her that he could not give her the said amount because he used it for his political campaign as he was then running for the position of Provincial Board Member of the 2nd District of Pampanga. Complainant maintains that inspite of their sexual relationship and the fact that respondent kept part of the money intended for her daughter, he still failed in his promise to give her a job. Furthermore, he did not file the case against Aquino and referred her instead to Atty. Federico S. Tolentino, Jr. ("Atty. Tolentino"). Sometime in 2002, assisted by Atty. Tolentino, complainant filed a criminal case for child abuse as well as a civil case against Aquino. While the criminal case was dismissed, the civil case was decided on 30 August 2004 by virtue of a compromise agreement. 7 It was only when said cases were filed that she finally understood the import of the Affidavit. Complainant avers that respondent failed to protect her interest when he personally prepared the Affidavit and caused her to sign the same, which obviously worked to her disadvantage. In making false promises that all her problems would be solved, aggravated by his assurance that his marriage had already been annulled, respondent allegedly deceived her into yielding to his sexual desires. Taking advantage of the trust and confidence she had in him as her counsel and paramour, her weak emotional state, and dire financial need at that time, respondent was able to appropriate for himself money that rightfully belonged to her daughter. She argues that respondent's aforementioned acts constitute a violation of his oath as a lawyer as well as the Code of Professional Responsibility ("Code"), particularly Rule 1.01, Rule 1.02, Rule 16.01, Rule 16.02, and Canon 7.8 Hence, she filed the instant complaint9 dated 2 February 2004. Expectedly, respondent presents a different version. According to him, complainant needed a lawyer who would file the aforementioned action for support. Complainant's former high school classmate Reinilda Bansil Morales, who was also his fellow barangay official, referred her to him. He admits sending a demand letter to her former lover, Aquino, to ask support for the child.10 Subsequently, he and Aquino communicated through an emissary. He learned that because of Aquino's infidelity, his relationship with his wife was strained so that in order to settle things the spouses were willing to give complainant a lump sum provided she would execute an affidavit to the effect that Aquino is not the father of her daughter. Respondent relayed this proposal to complainant who asked for his advice. He then advised her to study the proposal thoroughly and with a practical mindset. He also explained to her the pros and cons of pursuing the case. After several days, she requested that he negotiate for an out-of-court settlement of no less than P500,000.00. When Aquino rejected the amount, negotiations ensued until the amount was lowered to P200,000.00. Aquino allegedly offered to issue four postdated checks in equal amounts within four months. Complainant disagreed. Aquino then proposed to rediscount the checks at an interest of 4% a month or a total of P12,000.00. The resulting amount was P188,000.00. Complainant finally agreed to this arrangement and voluntarily signed the Affidavit that respondent prepared, the same Affidavit adverted to by complainant. He denies forcing

her to sign the document and strongly refutes her allegation that she did not know what the Affidavit was for and that she signed it without even reading it, as he gave her the draft before the actual payment was made. He notes that complainant is a college graduate and a former bank employee who speaks and understands English. He likewise vehemently denies pocketing P58,000.00 of the settlement proceeds. When complainant allegedly signed the Affidavit, the emissary handed to her the sum of P150,000.00 in cash and she allegedly told respondent that he could keep the remaining P38,000.00, not P58,000.00 as alleged in the complaint. Although she did not say why, he assumed that it was for his attorney's fees. As regards their illicit relationship, respondent admits of his sexual liaison with complainant. He, however, denies luring her with sweet words and empty promises. According to him, it was more of a "chemistry of (sic) two consensual (sic) adults,"11 complainant then being in her thirties. He denies that he tricked her into believing that his marriage was already annulled. Strangely, respondent devotes considerable effort to demonstrate that complainant very well knew he was married when they commenced what was to him, an extra-marital liaison. He points out that, first, they had met through his colleague, Ms. Morales, a friend and former high school classmate of hers. Second, they had allegedly first met at his residence where she was actually introduced to his wife. Subsequently, complainant called his residence several times and actually spoke to his wife, a circumstance so disturbing to respondent that he had to beg complainant not to call him there. Third, he was the Punong Barangay from 1994 to 2002, and was elected President of the Association of Barangay Council ("ABC") and as such was an ex-officio member of the Sangguniang Bayan of Guagua, Pampanga. He ran for the position of Provincial Board Member in 2001. Thus, he was known in his locality and it was impossible for complainant not to have known of his marital status especially that she lived no more than three (3) kilometers away from his house and even actively helped him in his campaign. Respondent further alleges that while the demand for support from Aquino was being worked out, complainant moved to a rented house in Olongapo City because a suitor had promised her a job in the Subic Naval Base. But months passed and the promised job never came so that she had to return to Lubao, Pampanga. As the money she received from Aquino was about to be exhausted, she allegedly started to pester respondent for financial assistance and urged him to file the Petition for Support against Aquino. While respondent acceded to her pleas, he also advised her "to look for the right man" 12 and to stop depending on him for financial assistance. He also informed her that he could not assist her in filing the case, as he was the one who prepared and notarized the Affidavit. He, however, referred her to Atty. Tolentino. In August 2002, respondent finally ended his relationship with complainant, but still he agreed to give her monthly financial assistance of P6,000.00 for six (6) months. Since then, they have ceased to meet and have communicated only through an emissary or by cellphone. In 2003, complainant begged him to continue the assistance until June when her alleged fianc from the United States would have arrived. Respondent agreed. In July 2003, she again asked for financial assistance for the last time, which he turned down. Since then he had stopped communicating to her. Sometime in January 2004, complainant allegedly went to see a friend of respondent. She told him that she was in need of P5,000.00 for a sari-sari store she was putting up and she wanted him to relay the message to respondent. According to this friend, complainant showed him a prepared complaint against respondent that she would file with the Supreme Court should the latter not accede to her request. Sensing that he was being blackmailed, respondent ignored her demand. True enough, he alleges, she filed the instant complaint.

On 21 July 2004, the case was referred to the Integrated Bar of the Philippines ("IBP") for investigation, report and recommendation.13 After the parties submitted their respective position papers and supporting documents, the Investigating Commissioner rendered his Report and Recommendation14 dated 2 September 2005. After presenting the parties' conflicting factual versions, the Investigating Commissioner gave credence to that of complainant and concluded that respondent clearly violated the Code, reporting in this wise, to wit: Respondent, through the above mentioned acts, clearly showed that he is wanting in good moral character, putting in doubt his professional reputation as a member of the BAR and renders him unfit and unworthy of the privileges which the law confers to him. From a lawyer, are (sic) expected those qualities of truthspeaking, high sense of honor, full candor, intellectual honesty and the strictest observance of fiduciary responsibility all of which throughout the passage of time have been compendiously described as MORAL CHARACTER. Respondent, unfortunately took advantage and (sic) every opportunity to entice complainant to his lascivious hungerness (sic). On several occasions[,] respondent kept on calling complainant and dropped by her house and gave P2,000.00 as aid while waiting allegedly for the reply of (sic) their demand letter for support. It signals the numerous visits and regular calls all because of [l]ewd design. He took advantage of her seeming financial woes and emotional dependency. xxxx Without doubt, a violation of the high moral standards of the legal profession justifies the impositions (sic) of the appropriate penalty, including suspension and disbarment. x x x15 It was then recommended that respondent be suspended from the practice of law for six (6) months and that he be ordered to return to complainant the amount of P58,000.00 within two months. The IBP Board of Governors adopted and approved the said Report and Recommendation in a Resolution16 dated 17 December 2005, finding the same to be fully supported by the evidence on record and the applicable laws and rules, and "considering Respondent's obviously taking advantage of the lawyer-client relationship and the financial and emotional problem of his client and attempting to mislead the Commission,"17 respondent was meted out the penalty of suspension for one (1) year with a stern warning that a repetition of similar acts will merit severe sanctions. He was likewise ordered to return P58,000.00 to complainant. Respondent filed a Motion for Reconsideration with Motion to Set Case for Clarificatory Questioning18 ("Motion") dated 9 March 2006 with the IBP and a Motion to Reopen/Remand Case for Clarificatory Questioning dated 22 March 2006 with the Supreme Court. He reiterates his own version of the facts, giving a more detailed account of the events that transpired between him and complainant. Altogether, he portrays complainant as a shrewd and manipulative woman who depends on men for financial support and who would stop at nothing to get what she wants. Arguing that the IBP based its Resolution solely on complainant's bare allegations that she failed to prove by clear and convincing evidence, he posits the case should be re-opened for clarificatory questioning in order to determine who between them is telling the truth. In a Resolution19 dated 27 April 2006, the IBP denied the Motion on the ground that it has no more jurisdiction over the case as the matter had already been endorsed to the Supreme Court. While we find respondent liable, we adjudicate the matter differently from what the IBP has recommended.

On the charge of immorality, respondent does not deny that he had an extra-marital affair with complainant, albeit brief and discreet, and which act is not "so corrupt and false as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree" 20 in order to merit disciplinary sanction. We disagree. One of the conditions prior to admission to the bar is that an applicant must possess good moral character. Said requirement persists as a continuing condition for the enjoyment of the privilege of law practice, otherwise, the loss thereof is a ground for the revocation of such privilege.21 As officers of the court, lawyers must not only in fact be of good moral character but must also be seen to be of good moral character and leading lives in accordance with the highest moral standards of the community.22 The Court has held that to justify suspension or disbarment the act complained of must not only be immoral, but grossly immoral.23 A grossly immoral act is one that is so corrupt and false as to constitute a criminal act or so unprincipled or disgraceful as to be reprehensible to a high degree.24 It is a willful, flagrant, or shameless act that shows a moral indifference to the opinion of the good and respectable members of the community.25 While it is has been held in disbarment cases that the mere fact of sexual relations between two unmarried adults is not sufficient to warrant administrative sanction for such illicit behavior,26 it is not so with respect to betrayals of the marital vow of fidelity. 27 Even if not all forms of extra-marital relations are punishable under penal law, sexual relations outside marriage is considered disgraceful and immoral as it manifests deliberate disregard of the sanctity of marriage and the marital vows protected by the Constitution and affirmed by our laws.28 By his own admission, respondent is obviously guilty of immorality in violation of Rule 1.01 of the Code which states that a lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. The next question to consider is whether this act is aggravated by his alleged deceitful conduct in luring complainant who was then in low spirits and in dire financial need in order to satisfy his carnal desires. While the IBP concluded the question in the affirmative, we find otherwise. Complainant's allegations that she succumbed to respondent's sexual advances due to his promises of financial security and because of her need for legal assistance in filing a case against her former lover, are insufficient to conclude that complainant deceived her into having sexual relations with her. Surely, an educated woman like herself who was of sufficient age and discretion, being at that time in her thirties, would not be easily fooled into sexual congress by promises of a job and of free legal assistance, especially when there is no showing that she is suffering from any mental or physical disability as to justify such recklessness and/or helplessness on her part.29 Respondent's numerous visits and regular calls to complainant do not necessarily prove that he took advantage of her. At best, it proves that he courted her despite being a married man, precisely the fact on which the finding of immorality is rooted. Moreover, the circumstance that he gave her P2,000.00 as aid does not induce belief that he fueled her financial dependence as she never denied pleading with, if not badgering, him for financial support. Neither does complainant's allegation that respondent lied to her about his marital status inspire belief. We find credence in respondent's assertion that it was impossible for her not to have known of his subsisting marriage. She herself admitted that they were introduced by her friend and former classmate, Ms. Morales who was a fellow barangay official of respondent. She admitted that she knew his residence phone number and that she had called him there. She also knew that respondent is an active barangay official who even ran as Provincial Board Member in 2001. Curiously, she never refuted respondent's allegations that she had met and talked to his wife on several occasions, that she lived near his residence, that she helped him in his campaign, or that she knew a lot of his friends, so as not to have known of his marital status. Considering that she previously had an affair with Aquino, who was also a married man, it would be unnatural

for her to have just plunged into a sexual relationship with respondent whom she had known for only a short time without verifying his background, if it were true that she preferred "to change [her] life for the better,"30 as alleged in her complaint. We believe that her aforementioned allegations of deceit were not established by clear preponderant evidence required in disbarment cases.31 We are left with the most logical conclusion that she freely and wittingly entered into an illicit and immoral relationship with respondent sans any misrepresentation or deceit on his part. Next, complainant charged respondent of taking advantage of his legal skills and moral control over her to force her to sign the clearly disadvantageous Affidavit without letting her read it and without explaining to her its repercussions. While acting as her counsel, she alleged that he likewise acted as counsel for Aquino. We find complainant's assertions dubious. She was clearly in need of financial support from Aquino especially that her daughter was suffering from a heart ailment. We cannot fathom how she could abandon all cares to respondent who she had met for only a couple of months and thereby risk the welfare of her child by signing without even reading a document she knew was related to the support case she intended to file. The Affidavit consists of four short sentences contained in a single page. It is unlikely she was not able to read it before she signed it. Likewise obscure is her assertion that respondent did not fully explain to her the contents of the Affidavit and the consequences of signing it. She alleged that respondent even urged her "to use her head as Arnulfo Aquino will not give the money for Alexandra's medical and educational support if she will not sign the said Affidavit of Disclaimer." 32 If her own allegation is to be believed, it shows that she was aware of the on-going negotiation with Aquino for the settlement of her claim for which the latter demanded the execution of the Affidavit. It also goes to show that she was pondering on whether to sign the same. Furthermore, she does not deny being a college graduate or that she knows and understands English. The Affidavit is written in short and simple sentences that are understandable even to a layman. The inevitable conclusion is that she signed the Affidavit voluntarily and without any coercion whatsoever on the part of respondent. The question remains as to whether his act of preparing and notarizing the Affidavit, a document disadvantageous to his client, is a violation of the Code. We rule in the negative. It was not unlawful for respondent to assist his client in entering into a settlement with Aquino after explaining all available options to her. The law encourages the amicable settlement not only of pending cases but also of disputes which might otherwise be filed in court.33 Moreover, there is no showing that he knew for sure that Aquino is the father of complainant's daughter as paternity remains to be proven. As complainant voluntarily and intelligently agreed to a settlement with Aquino, she cannot later blame her counsel when she experiences a change of heart. Besides, the record is bereft of evidence as to whether respondent also acted as Aquino's counsel in the settlement of the case. Again, we only have complainant's bare allegations that cannot be considered evidence. 34 Suspicion, no matter how strong, is not enough. In the absence of contrary evidence, what will prevail is the presumption that the respondent has regularly performed his duty in accordance with his oath.35 Complainant further charged respondent of misappropriating part of the money given by Aquino to her daughter. Instead of turning over the whole amount, he allegedly issued to her his personal check in the amount of P150,000.00 and pocketed the remaining P58,000.00 in violation of his fiduciary obligation to her as her counsel.

The IBP did not make any categorical finding on this matter but simply ordered respondent to return the amount of P58,000.00 to complainant. We feel a discussion is in order. We note that there is no clear evidence as to how much Aquino actually gave in settlement of complainant's claim for support. The parties are in agreement that complainant received the amount of P150,000.00. However, complainant insists that she should have received more as there were two postdated checks amounting to P58,000.00 that respondent never turned over to her. Respondent essentially agrees that the amount is in fact more than P150,000.00 but only P38,000.00 more and complainant said he could have it and he assumed it was for his attorney's fees. We scrutinized the records and found not a single evidence to prove that there existed two postdated checks issued by Aquino in the amount of P58,000.00. On the other hand, respondent admits that there is actually an amount of P38,000.00 but presented no evidence of an agreement for attorney's fees to justify his presumption that he can keep the same. Curiously, there is on record a photocopy of a check issued by respondent in favor of complainant for P150,000.00. It was only in his Motion for Reconsideration where respondent belatedly proffers an explanation. He avers that he cannot recall what the check was for but he supposes that complainant requested for it as she did not want to travel all the way to Olongapo City with a huge sum of money. We find the circumstances rather suspicious but evidence is wanting to sustain a finding in favor of either party in this respect. We cannot and should not rule on mere conjectures. The IBP relied only on the written assertions of the parties, apparently finding no need to subject the veracity of the assertions through the question and answer modality. With the inconclusive state of the evidence, a more in-depth investigation is called for to ascertain in whose favor the substantial evidence level tilts. Hence, we are constrained to remand the case to the IBP for further reception of evidence solely on this aspect. We also are unable to grant complainant's prayer for respondent to be made liable for the cost of her child's DNA test absent proof that he misappropriated funds exclusively earmarked for the purpose. Neither shall we entertain complainant's claim for moral damages and attorney's fees. Suffice it to state that an administrative case against a lawyer is sui generis, one that is distinct from a civil or a criminal action.36 It is an investigation by the Court into the fitness of a lawyer to remain in the legal profession and be allowed the privileges as such. Its primary objective is to protect the Court and the public from the misconduct of its officers with the end in view of preserving the purity of the legal profession and the proper and honest administration of justice by requiring that those who exercise this important function shall be competent, honorable and reliable men and women in whom courts and clients may repose confidence.37 As such, it involves no private interest and affords no redress for private grievance.38 The complainant or the person who called the attention of the court to the lawyer's alleged misconduct is in no sense a party, and has generally no interest in the outcome except as all good citizens may have in the proper administration of justice.39 Respondent's misconduct is of considerable gravity. There is a string of cases where the Court meted out the extreme penalty of disbarment on the ground of gross immorality where the respondent contracted a bigamous marriage,40 abandoned his family to cohabit with his paramour,41 cohabited with a married woman,42 lured an innocent woman into marriage,43 or was found to be a womanizer.44 The instant case can be easily differentiated from the foregoing cases. We, therefore, heed the stern injunction on decreeing disbarment where any lesser penalty, such as temporary suspension, would accomplish the end desired.45 In Zaguirre v. Castillo,46 respondent was found to have

sired a child with another woman who knew he was married. He therein sought understanding from the Court pointing out the polygamous nature of men and that the illicit relationship was a product of mutual lust and desire. Appalled at his reprehensible and amoral attitude, the Court suspended him indefinitely. However, in Fr. Sinnott v. Judge Barte,47 where respondent judge consorted with a woman not his wife, but there was no conclusive evidence that he sired a child with her, he was fined P10,000.00 for his conduct unbecoming a magistrate despite his retirement during the pendency of the case. We note that from the very beginning of this case, herein respondent had expressed remorse over his indiscretion and had in fact ended the brief illicit relationship years ago. We take these as signs that his is not a character of such severe depravity and thus should be taken as mitigating circumstances in his favor.48 Considering further that this is his first offense, we believe that a fine of P15,000.00 would suffice. This, of course, is without prejudice to the outcome of the aspect of this case involving the alleged misappropriation of funds of the client. WHEREFORE, premises considered, we find Atty. Diosdado M. Rongcal GUILTY of immorality and impose on him a FINE of P15,000.00 with a stern warning that a repetition of the same or similar acts in the future will be dealt with more severely. The charge of misappropriation of funds of the client is REMANDED to the IBP for further investigation, report and recommendation within ninety (90) days from receipt of this Decision. Let a copy of this decision be entered in the personal record of respondent as an attorney and as a member of the Bar, and furnished the Bar Confidant, the Integrated Bar of the Philippines and the Court Administrator for circulation to all courts in the country. SO ORDERED. Quisumbing, Chairperson, Carpio, Carpio-Morales, Velasco, Jr., J.J., , concur.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION A.C. No. 7204 March 7, 2007

CYNTHIA ADVINCULA, Complainant, vs. ATTY. ERNESTO M. MACABATA, Respondent.

RESOLUTION

CHICO-NAZARIO, J.: Before Us is a complaint1 for disbarment filed by Cynthia Advincula against respondent Atty. Ernesto M. Macabata, charging the latter with Gross Immorality. Complainant alleged the following: Sometime on 1st week of December 2004 complainant [Cynthia Advincula] seek the legal advice of the respondent [Atty. Macabata], regarding her collectibles from Queensway Travel and Tours. As promised, he sent Demand Letter dated December 11, 2004 (copy attached as Annex "I") to the concerned parties. On February 10, 2005, met (sic) at Zensho Restaurant in Tomas Morato, Quezon City to discuss the possibility of filing the complaint against Queensway Travel and Tours because they did not settle their accounts as demanded. After the dinner, respondent sent complainant home and while she is about to step out of the car, respondent hold (sic) her arm and kissed her on the cheek and embraced her very tightly. Again, on March 6, 2005, at about past 10:00 in the morning, she met respondent at Starbucks coffee shop in West Avenue, Quezon City to finalize the draft of the complaint to be filed in Court. After the meeting, respondent offered again a ride, which he usually did every time they met. Along the way, complainant was wandering (sic) why she felt so sleepy where in fact she just got up from bed a few hours ago. At along Roosevelt Avenue immediately after corner of Felipe St., in San Francisco Del Monte, Quezon City when she was almost restless respondent stopped his car and forcefully hold (sic) her face and kissed her lips while the other hand was holding her breast. Complainant even in a state of shocked (sic) succeeded in resisting his criminal attempt and immediately manage (sic) to go (sic) out of the car. In the late afternoon, complainant sent a text message to respondent informing him that she decided to refer the case with another lawyer and needs (sic) to get back the case folder from him. The communications transpired was recorded in her cellular phone and read as follows: Sent by At 5:33:46 pm replied by at 6:16:11 pm complainant - forget the case. I decided to refer it with other lawyer respondent - "does this mean I can not c u anymore" (Does this mean I cannot see you

anymore) sent by at 6:17:59 pm Follow-up Sent by At 6:29:30 pm Replied by At 6:32:43 pm complainant - I feel bad. I cant expect that u will take advantage of the situation. message - wrong to kiss a girl especially in the lips if you complainant dont have relationship with her. respondent - "Im veri sri. Its not tking advantage of the situation, 2 put it rightly it s an expression of feeling. S sri" (Im very sorry. Its not taking advantage of the situation, to put it rightly it is an expression of feeling)

Follow up message - Im s sri. Il not do it again. Wil u stil c me s I can by respondent show u my sincerity" (Im so sorry. Ill not do it at 6:42:25 pm again. Will you still see me so I can show you my sincerity) On the following day, March 7, 2005 respondent sent another message to complainant at 3:55:32 pm saying "I dont know wat 2 do s u may 4give me. "Im realy sri. Puede bati na tyo." (I dont know what to do so you may forgive me. Im really sorry. Puede bati na tayo). Respondent replied "talk to my lawyer in due time." Then another message was received by her at 4:06:33 pm saying "Ano k ba. Im really sri. Pls. Nxt ime bhave n me." (Ano ka ba. Im really sorry. Please next time behave na ko), which is a clear manifestation of admission of guilt.2 In his answer,3 respondent admitted that he agreed to provide legal services to the complainant; that he met with complainant on 10 February 2005 and 6 March 2005, to discuss the relevant matters relative to the case which complainant was intending to file against the owners of Queensway Travel and Tours for collection of a sum of money; that on both occasions, complainant rode with him in his car where he held and kissed complainant on the lips as the former offered her lips to him; and, that the corner of Cooper Street and Roosevelt Avenue, where he dropped off the complainant, was a busy street teeming with people, thus, it would have been impossible to commit the acts imputed to him. By way of defense, respondent further elucidated that: 1) there was a criminal case for Acts of Lasciviousness filed by complainant against respondent pending before the Office of the City Prosecutor in Quezon City; 2) the legal name of complainant is Cynthia Advincula Toriana since she remains married to a certain Jinky Toriana because the civil case for the nullification of their marriage was archived pursuant to the Order dated 6 December 2000 issued by the Regional Trial Court of Maburao, Occidental Mindoro; 3) the complainant was living with a man not her husband; and 4) the complainant never bothered to discuss respondents fees and it was respondent who always paid for their bills every time they met and ate at a restaurant. A hearing was conducted by the Commission on Bar Discipline of the Integrated Bar of the Philippines (IBP) at the IBP Building, Ortigas Center, Pasig City, on 26 July 2005. On 30 September 2005, Investigating Commissioner Dennis A. B. Funa submitted his Report and Recommendation,4 recommending the imposition of the penalty of one (1) month suspension on respondent for violation of the Code of Professional Responsibility.

Thereafter, the IBP passed Resolution No. XVII-2006-117 dated 20 March 2006, approving and adopting, with modification, the recommendation of the Investigating Commissioner, thus: RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, with modification, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution as Annex "A"; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and considering the behavior of Respondent went beyond the norms of conduct required of a lawyer when dealing with or relating with a client, Atty. Ernesto A. Macabata is SUSPENDED from the practice of law for three (3) months.5 The issue to be resolved in this case is: whether respondent committed acts that are grossly immoral or which constitute serious moral depravity that would warrant his disbarment or suspension from the practice of law. Simple as the facts of the case may be, the manner by which we deal with respondents actuations shall have a rippling effect on how the standard norms of our legal practitioners should be defined. Perhaps morality in our liberal society today is a far cry from what it used to be. This permissiveness notwithstanding, lawyers, as keepers of public faith, are burdened with a high degree of social responsibility and, hence, must handle their personal affairs with greater caution. The Code of Professional Responsibility provides: CANON I x x x Rule 1.01-- A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. CANON 7-- A lawyer shall at all times uphold the integrity and dignity of the legal profession and support the activities of the Integrated Bar. xxxx Rule 7.03-- A lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor shall he, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession. As may be gleaned from above, the Code of Professional Responsibility forbids lawyers from engaging in unlawful, dishonest, immoral or deceitful conduct. Lawyers have been repeatedly reminded that their possession of good moral character is a continuing condition to preserve their membership in the Bar in good standing. The continued possession of good moral character is a requisite condition for remaining in the practice of law.6 In Aldovino v. Pujalte, Jr.,7 we emphasized that: This Court has been exacting in its demand for integrity and good moral character of members of the Bar. They are expected at all times to uphold the integrity and dignity of the legal profession and refrain from any act or omission which might lessen the trust and confidence reposed by the public in the fidelity, honesty, and integrity of the legal profession. Membership in the legal profession is a privilege. And whenever it is made to appear that an attorney is no longer worthy of the trust and confidence of the public, it becomes not only the right but also the duty of this Court, which made him one of its officers and gave him the privilege of ministering within its Bar, to withdraw the privilege.

It is the bounden duty of lawyers to adhere unwaveringly to the highest standards of morality. The legal profession exacts from its members nothing less. Lawyers are called upon to safeguard the integrity of the Bar, free from misdeeds and acts constitutive of malpractice. Their exalted positions as officers of the court demand no less than the highest degree of morality.8 We explained in Barrientos v. Daarol9 that, "as officers of the court, lawyers must not only in fact be of good moral character but must also be seen to be of good moral character and leading lives in accordance with the highest moral standards of the community." Lawyers are expected to abide by the tenets of morality, not only upon admission to the Bar but also throughout their legal career, in order to maintain their good standing in this exclusive and honored fraternity. They may be suspended from the practice of law or disbarred for any misconduct, even if it pertains to his private activities, as long as it shows him to be wanting in moral character, honesty, probity or good demeanor.10 In Bar Matter No. 1154,11 good moral character was defined as what a person really is, as distinguished from good reputation, or from the opinion generally entertained of him, or the estimate in which he is held by the public in the place where he is known. Moral character is not a subjective term but one which corresponds to objective reality. It should be noted that the requirement of good moral character has four ostensible purposes, namely: (1) to protect the public; (2) to protect the public image of lawyers; (3) to protect prospective clients; and (4) to protect errant lawyers from themselves.12 In the case at bar, respondent admitted kissing complainant on the lips. In his Answer,13 respondent confessed, thus: 27. When she was about to get off the car, I said can I kiss you goodnight. She offered her left cheek and I kissed it and with my left hand slightly pulled her right face towards me and kissed her gently on the lips. We said goodnight and she got off the car. xxxx 35. When I stopped my car I said okay. I saw her offered (sic) her left cheek and I lightly kissed it and with my right hand slightly pulled her right cheek towards me and plant (sic) a light kiss on her lips. There was no force used. No intimidation made, no lewd designs displayed. No breast holding was done. Everything happened very spontaneously with no reaction from her except saying "sexual harassment." During the hearing held on 26 July 2005 at the 3rd floor, IBP Building, Dona Julia Vargas Avenue, Ortigas City, respondent candidly recalled the following events: ATTY. MACABATA: That time in February, we met I fetched her I should say, somewhere along the corner of Edsa and Kamuning because it was then raining so we are texting each other. So I parked my car somewhere along the corner of Edsa and Kamuning and I was there about ten to fifteen minutes then she arrived. And so I said she opened my car and then she went inside so I said, would you like that we have a Japanese dinner? And she said yes, okay. So I brought her to Zensho which is along Tomas Morato. When we were there, we discussed about her case, we ordered food and then a little while I told her, would it be okay for you of I (sic) order wine? She said yes so I ordered two glasses of red wine. After that, after discussing matters about her case, so I said its about 9:00 or beyond that time already, so I said okay, lets go. So when I said lets go so I stood up and then I went to the car. I went ahead of my car and she followed me then she rode on (sic) it. So I told her where to? She told me just drop me at the same place where you have been

dropping me for the last meetings that we had and that was at the corner of Morato and Roosevelt Avenue. So, before she went down, I told her can I kiss you goodnight? She offered her left cheek and I kissed it and with the slight use of my right hand, I ... should I say tilted her face towards me and when shes already facing me I lightly kissed her on the lips. And then I said good night. She went down the car, thats it. COMM. FUNA: February 10 iyan. xxxx ATTY. MACABATA: Okay. After that were through so I said lets go because I have an appointment. So we went out, we went inside my car and I said where to? Same place, she said, so then at the same corner. So before she went down , before she opened the door of the car, I saw her offered her left cheek. So I kissed her again. COMM. FUNA: Pardon? ATTY. MACABATA: I saw her offered her left cheek like that, so I kissed her again and then with the use of my left hand, pushed a little bit her face and then kissed her again softly on the lips and thats it. x x x.14 (Emphases supplied.) It is difficult to state with precision and to fix an inflexible standard as to what is "grossly immoral conduct" or to specify the moral delinquency and obliquity which render a lawyer unworthy of continuing as a member of the bar. The rule implies that what appears to be unconventional behavior to the straight-laced may not be the immoral conduct that warrants disbarment.15 In Zaguirre v. Castillo,16 we reiterated the definition of immoral conduct, as such conduct which is so willful, flagrant, or shameless as to show indifference to the opinion of good and respectable members of the community. Furthermore, for such conduct to warrant disciplinary action, the same must not simply be immoral, but grossly immoral. It must be so corrupt as to constitute a criminal act, or so unprincipled as to be reprehensible to a high degree or committed under such scandalous or revolting circumstances as to shock the common sense of decency. The following cases were considered by this Court as constitutive of grossly immoral conduct: In Toledo v. Toledo,17 a lawyer was disbarred from the practice of law, when he abandoned his lawful wife and cohabited with another woman who had borne him a child. In Obusan v. Obusan, Jr.,18 a lawyer was disbarred after complainant proved that he had abandoned her and maintained an adulterous relationship with a married woman. This court declared that respondent failed to maintain the highest degree of morality expected and required of a member of the bar. In Dantes v. Dantes,19 respondents act of engaging in illicit relationships with two different women during the subsistence of his marriage to the complainant constitutes

grossly immoral conduct warranting the imposition of appropriate sanctions. Complainants testimony, taken in conjunction with the documentary evidence, sufficiently established that respondent breached the high and exacting moral standards set for members of the law profession. In Delos Reyes v. Aznar,20 it was ruled that it was highly immoral of respondent, a married man with children, to have taken advantage of his position as chairman of the college of medicine in asking complainant, a student in said college, to go with him to Manila where he had carnal knowledge of her under the threat that she would flank in all her subjects in case she refused. In Cojuangco, Jr. v. Palma,21 respondent lawyer was disbarred when he abandoned his lawful wife and three children, lured an innocent woman into marrying him and misrepresented himself as a "bachelor" so he could contract marriage in a foreign land. In Macarrubo v. Macarrubo,22 respondent entered into multiple marriages and then resorted to legal remedies to sever them. There, we ruled that "[s]uch pattern of misconduct by respondent undermines the institutions of marriage and family, institutions that this society looks to for the rearing of our children, for the development of values essential to the survival and well-being of our communities, and for the strengthening of our nation as a whole." As such, "there can be no other fate that awaits respondent than to be disbarred." In Tucay v. Tucay,23 respondent contracted marriage with another married woman and left complainant with whom he has been married for thirty years. We ruled that such acts constitute "a grossly immoral conduct and only indicative of an extremely low regard for the fundamental ethics of his profession," warranting respondents disbarment. In Villasanta v. Peralta,24 respondent married complainant while his first wife was still alive, their marriage still valid and subsisting. We held that "the act of respondent of contracting the second marriage is contrary to honesty, justice, decency and morality." Thus, lacking the good moral character required by the Rules of Court, respondent was disqualified from being admitted to the bar. In Cabrera v. Agustin,25 respondent lured an innocent woman into a simulated marriage and thereafter satisfied his lust. We held that respondent failed to maintain that degree of morality and integrity which, at all times, is expected of members of the bar. He is, therefore, disbarred from the practice of law. Immorality has not been confined to sexual matters, but includes conduct inconsistent with rectitude, or indicative of corruption, indecency, depravity and dissoluteness; or is willful, flagrant, or shameless conduct showing moral indifference to opinions of respectable members of the community, and an inconsiderate attitude toward good order and public welfare.26 Guided by the definitions above, we perceived acts of kissing or beso-beso on the cheeks as mere gestures of friendship and camaraderie, 27 forms of greetings, casual and customary. The acts of respondent, though, in turning the head of complainant towards him and kissing her on the lips are distasteful. However, such act, even if considered offensive and undesirable, cannot be considered grossly immoral. Complainants bare allegation that respondent made use and took advantage of his position as a lawyer to lure her to agree to have sexual relations with him, deserves no credit. The burden of proof rests on the complainant, and she must establish the case against the respondent by clear, convincing and satisfactory proof,28 disclosing a case that is free from doubt as to compel the exercise by the Court of its disciplinary power. 29 Thus, the adage that "he who asserts not he who denies, must prove." 30 As a basic rule in

evidence, the burden of proof lies on the party who makes the allegationsei incumbit probation, qui decit, non qui negat; cum per rerum naturam factum negantis probation nulla sit.31 In the case at bar, complainant miserably failed to comply with the burden of proof required of her. A mere charge or allegation of wrongdoing does not suffice. Accusation is not synonymous with guilt.32 Moreover, while respondent admitted having kissed complainant on the lips, the same was not motivated by malice. We come to this conclusion because right after the complainant expressed her annoyance at being kissed by the respondent through a cellular phone text message, respondent immediately extended an apology to complainant also via cellular phone text message. The exchange of text messages between complainant and respondent bears this out. Be it noted also that the incident happened in a place where there were several people in the vicinity considering that Roosevelt Avenue is a major jeepney route for 24 hours. If respondent truly had malicious designs on complainant, he could have brought her to a private place or a more remote place where he could freely accomplish the same. All told, as shown by the above circumstances, respondents acts are not grossly immoral nor highly reprehensible to warrant disbarment or suspension. The question as to what disciplinary sanction should be imposed against a lawyer found guilty of misconduct requires consideration of a number of factors.33 When deciding upon the appropriate sanction, the Court must consider that the primary purposes of disciplinary proceedings are to protect the public; to foster public confidence in the Bar; to preserve the integrity of the profession; and to deter other lawyers from similar misconduct.34 Disciplinary proceedings are means of protecting the administration of justice by requiring those who carry out this important function to be competent, honorable and reliable men in whom courts and clients may repose confidence.35 While it is discretionary upon the Court to impose a particular sanction that it may deem proper against an erring lawyer, it should neither be arbitrary and despotic nor motivated by personal animosity or prejudice, but should ever be controlled by the imperative need to scrupulously guard the purity and independence of the bar and to exact from the lawyer strict compliance with his duties to the court, to his client, to his brethren in the profession and to the public. The power to disbar or suspend ought always to be exercised on the preservative and not on the vindictive principle, with great caution and only for the most weighty reasons and only on clear cases of misconduct which seriously affect the standing and character of the lawyer as an officer of the court and member of the Bar. Only those acts which cause loss of moral character should merit disbarment or suspension, while those acts which neither affect nor erode the moral character of the lawyer should only justify a lesser sanction unless they are of such nature and to such extent as to clearly show the lawyers unfitness to continue in the practice of law. The dubious character of the act charged as well as the motivation which induced the lawyer to commit it must be clearly demonstrated before suspension or disbarment is meted out. The mitigating or aggravating circumstances that attended the commission of the offense should also be considered.36 Censure or reprimand is usually meted out for an isolated act of misconduct of a lesser nature. It is also imposed for some minor infraction of the lawyers duty to the court or the client.37 In the Matter of Darell Adams,38 a lawyer was publicly reprimanded for grabbing a female client, kissing her, and raising her blouse which constituted illegal conduct involving moral turpitude and conduct which adversely reflected on his fitness to practice law. Based on the circumstances of the case as discussed and considering that this is respondents first offense, reprimand would suffice.

We laud complainants effort to seek redress for what she honestly believed to be an affront to her honor. Surely, it was difficult and agonizing on her part to come out in the open and accuse her lawyer of gross immoral conduct. However, her own assessment of the incidents is highly subjective and partial, and surely needs to be corroborated or supported by more objective evidence. WHEREFORE, the complaint for disbarment against respondent Atty. Ernesto Macabata, for alleged immorality, is hereby DISMISSED. However, respondent is hereby REPRIMANDED to be more prudent and cautious in his dealing with his clients with a STERN WARNING that a more severe sanction will be imposed on him for any repetition of the same or similar offense in the future. SO ORDERED.