CASES:

1. PEOPLE VS JARDIN2. JAVELLANA VS LUTERO3. ACHACOSO VS CA4. AUSTRIA VS MASAQUEL5. STA MARIA VS TUASON6. LEDESMA VS CLIMACO 7. DOMINADOR VS MAGULTA8. COJUANCO VS PALMA

1. PEOPLE V JARDIN

Two constitutional rights—speedy trial and freedom from double jeopardy—are interposed as defenses by the accused in this petition for review on certiorari.

The petitioner asks us to review and annul the orders of the Court of First Instance of Quezon, Branch V, which dismissed the criminal cases against accuse Demetrio Jardin because his constitutional right to speedy trial was allegedly violated.

The criminal prosecutions originated from a letter complaint of the Provincial Auditor of Quezon requesting the Provincial Fiscal to file the necessary criminal action under Article 217 of the Revised Penal Code against Demetrio Jardin for malversation of public funds thru falsification of public documents on six counts.

The cases were assigned to Assistant Fiscal Meliton V. Angeles who set them for preliminary investigation.The accused moved to postpone the investigation twice. On the third time that the investigation was re-set, the accused and his counsel failed to appear.

On the fourth resetting, the accused and his counsel again failed to appear. Inspire of their absence, the preliminary investigation was conducted and shortly afterwards, six informations were filed against the accused before the Court of First Instance of Quezon, Branch II, docketed as Cases Nos. 16052 (0043-M), 16053 (0044-M), 16054 (0045-ML 16055 (0046-M), 16056 (0047-M), and 16057 (0048-M). The arraignment was set for May 9, 1967.

The records show that from May 9, 1967, the arraignment was re-set for June 6; then re-set for June 26; then from August 16, the same was re-set for September 5, all because of the motions for postponement filed at the instance of the accused. (Original records [0043-M] pp. 54, 61, 66 and 69).

When the arraignment of the accused was called on September 5, 1967, counsel for the accused verbally moved for reinvestigation on the ground that the accused was not given the opportunity to present his defense during the preliminary investigation. This was granted by the court and the first reinvestigation was set on November 24, 1967. On this date, however, the Investigating Fiscal motu proprio postponed said reinvestigation due to the non-appearance of accused and his counsel and re-set the date for December 21, 1967.

A series of postponements was again filed by the accused causing further. delays of the reinvestigation. On June 27, 1968, accused and his counsel appeared together but requested for a period of fifteen (15) days within which to file a memorandum.

In view of the expiration of the 15-day period, the Investigating Fiscal filed a manifestation before the court that the records of these cases be returned and the trial on the merits of the same be set.

The court without acting on said manifestation, issued an order transferring the six (6) cases to the new branch (Branch V) of the Court of First Instance at Mauban, Quezon. Upon receipt by the latter of the records of these cases, the arraignment and trial were set for December 3, 1968.

On the latter date, the counsel for the accused sought again the postponement of the arraignment and this was followed by more postponements, all at the instance of the accused. (Original records, [0043-M] pp. 90,93,120 and 125).

On March 31, 1969, counsel for the accused moved for the postponement of the arraignment and requested the court that the records be returned again to the Office of the Fiscal for further reinvestigation. This was granted and the reinvestigation was again set for May 5, 1969. The accused and his counsel, however, failed to appear and thus, the said reinvestigation was re-set for June 2, 1969. On this date, counsel for accused requested that he be given five (5) days within which to file a written sworn statement of the accused which would constitute the defense of the latter, subject to the cross-examination of the Investigating Fiscal.

Considering the fact that the period to file such sworn statement had already expired without anything being filed, the records of the cases were returned to the court which set said cases for arraignment and trial on September 2, 1970. On this date, the accused again moved for postponement.

When these cases were called for arraignment on September 8, 1970, Demetrio Jardin, pleaded not guilty to the crime as charged, after which he requested that the trial be postponed and re-set for September 29, 1970.

On September 29, 1970, the trial scheduled on that day was postponed again on motion of counsel for the accused. The trial was re-set for October 12, 1970, with notice to both parties.

On October 12, 1970, when the said criminal cases were called for hearing, no one appeared for the prosecution, except a state witness, Mr. Cesar Alcala of the Provincial Auditor's office who remained silent during the proceedings.

Invoking his client's constitutional right to speedy trial and seizing the opportunity to take advantage of the prosecution's failure to appear on that day, the defense counsel moved for the dismissal of the cases. The respondent court granted the oral motion for dismissal "for reasons of constitutional rights of the accused Demetrio Jardin. "

Two questions are now raised by the People in this appeal:

I. Considering the factual setting in the criminal cases at bar, was the respondent Court correct in dismissing the cases and in predicating the dismissal on the right of the defendant to a speedy trial?

II. Does the present appeal place the respondent accuse in double jeopardy?

The respondent court committed a grave abuse of discretion in dismissing the cases and in basing the dismissal on the constitutional right of the accused to speedy trial. The right to a speedy trial means that the accused is free from vexatious, capricious, and oppressive delays, its salutary objective being to assure that an innocent person may be free from anxiety and expense of a court litigation or, if otherwise, of having his guilt determined within the shortest possible time compatible with the presentation and consideration of whatever legitimate defense he may interpose. (See Andres v. Cacdac, 113 SCRA 216)

[From a perusal of the facts, it is readily seen that all the delays in the prosecution of the cases were caused by the accused himself.] All the postponements of proceedings were made at his instance and for his behalf. Hence, the constitutional right to a speedy trial afforded to an accused by our Constitution cannot be invoked. From the start of the preliminary investigation of the cases up to the trial on the merits, the accused always managed to delay the proceedings through postponements and requests for reinvestigation. [It would, therefore, be a mockery of the criminal justice system if the accused would be allowed to benefit from his own wrongdoings or tactical maneuvers intended to frustrate the administration of justice. By his own deliberate acts, he is deemed to have waived or abandoned his right to a speedy trial. In the case of Andres v. Cacdac, 113 SCRA 216, we ruled:]

In this case, however, there was a waiver or abandonment of the right to a speedy trial in the first case when the herein petitioners sought and obtained several postponements of the trial: first, when they asked for the deferment of the arraignment because the accused Ladislao Tacipit was not present; second, when they asked for the postponement of the trial for March 5, 1968 upon the ground that they have requested the Provincial Fiscal of Cagayan for a reinvestigation of the case; and finally, when they agreed, with the prosecution, to postpone the hearing set for November 28, 1968 to January 4, 1969..

The dismissal of the criminal cases against the accused by the respondent court on the ground that his right to speedy trial had beer violated was devoid of factual and legal basis. The order denying the motion for reconsideration is similarly infirm. There being no basis for the questioned orders, they are consequently null and void.

Would a reinstatement of the dismissed cases place the accused in double jeopardy?

In order that the protection against double jeopardy may inure to the benefit of an accused, the following requisites must be present in the first prosecution: (a) a valid complaint or information; (b) a competent court; (c) the defendant had pleaded to the charge; and (d) the defendant was acquitted, or convicted, or the case against him was dismissed or otherwise terminated without his express consent. (Rule 117, Section 9, Rules of Court; People v. Ledesma, 73 SCRA 77). The last requisite assumes a valid acquittal and a valid acquittal presupposes a valid judgment by a court of competent jurisdiction. Since in the instant cases, the dismissal was void for having been issued without legal basis, it follows that the acquittal brought about by the dismissal is also void. Hence, no jeopardy can attach from such acquittal. The act of respondent judge in discussing the cases amounted to lack of jurisdiction which would prevent double jeopardy from attaching. In the case of People v. Court of appeals (10 1 SCRA 450) we ruled:

Private respondents further argue that a judgment of acquittal ends the case which cannot be appealed nor reopened, otherwise, they would be put twice in jeopardy for the same offense. That is the general rule and presupposes a valid judgment. As earlier pointed out, however, respondent Courts' Resolution of acquittal was a void judgment for having been issued without jurisdiction No double jeopardy attaches, therefore. A void judgment is, in legal effect, no judgment at all. (Comia v. Nicolas, 29 SCRA 492 [1969]) By it no rights are divested Through it, no rights can be attains & Being worthless, all proceedings founded upon it are equally worthless It neither binds nor bars anyone. All acts performed under it and all claims flowing out of it are void. (Gomez v. Concepcion, 47 Phil. 717, 722.[1925]; Chavez vs. Court of Appeals, 24 SCRA 663, 685 [1968]; Parades v. Moya, 61 SCRA 526, [1974]). ...

We also note that the dismissall of the criminal cases was upon motion and with the wxpress consent of respondent Demetrio Jardin. For double jeopardy to attach, the general rule is that the dismissal of the case must be without the express consent of the accused. (People v. Salico, 84 Phil. 722; People v. Obsania, 23 SCRA 1249; People v. Pilpa, 79 SCRA 81; and People v. Cuevo, 104 SCRA 312).

If the accused had been denied his right to speedy trial or if some other basic right had been impaired, the doctrine of waiver of the right to invoke double jeopardy would not apply even if the accused had expressly moved for the termination of proceedings. In the instant case, however, the defendant had deliberately used all the available dilatory tactics he could utilize and abused the principle that the accused must be given every opportunity to disprove the criminal charge. The doctrine of double jeopardy was never intended for this purpose.

Even as we rule that the lower court acted with grave abuse of discretion, we also rebuke the attorneys for both the defense and the prosecution and to a certain extent, the court itself because of the breach of duties to the courts and to the administration of justice apparent in this case.

The duties of an attorney found in Rule 138, Section 20 include: -

xxx xxx xxx

(d) To employ, for the purpose of maintaining the causes confided to him, such means only as are consistent with truth and honor,...

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(g) Not to encourage either the commencement or the continuance of an action or proceeding, or delay any man's cause, from any corrupt motive or interest.

xxx xxx xxx

The dilatory tactics of the defense counsel and the failure of both the judge and the fiscal to take effective counter measures to obviate the delaying acts constitute obstruction of justice.

As aptly stared:

12.09 Obstructing the administration of justice

An attorney as an officer of the court is called upon to assist in the due administration of justice. Like the court itself, he is an instrument to advance its cause. (Surigao Mineral Reservation Board vs. Cloribel, G.R. No. 11071, Jan. 9, 1972, 31 SCRA 1; In re Climaco, G.R. Adm. Case No. 134-J, Jan. 21, 1974, 55 SCRA 107) For this reason, any act on the part of a lawyer that obstructs, perverts or impedes the administration of justice constitutes misconduct and justifies disciplinary action against him. (Cantorne vs. Ducasin 57 Phil, 23 [1932]; De los Santos vs. Sagalongos 69 Phil. 406 [1940]).

Acts which amount to obstruction in the administration of justice may take many forms. They include such acts as instructing a complaining witness in a criminal action not to appear at the scheduled hearing so that the case against the client, the accused, would be dismissed. (Cantorne vs. Ducasin supra) asking a client to plead guilty to a crime which the lawyer knows his client did not commit, (Nueno v. Santos, 58 Phil. 557 [1933]) advising a client who is detained for a crime to escape from prison, (Cf. Medina v. Yan, G.R. No. 30978, Sept. 30, 1974) employing dilatory tactics to frustrate satisfaction of clearly valid claims, Pajares vs. Abad Santos, G.R. No. 29543, Nov. 29, 1969, 30 SCRA 748) prosecuting clearly frivolous cases or appeals to drain the resources of the other party and compel him to submit out of exhaustion (Samar Mining Co. vs. Arnado, G.R. No. 22304. July 30, 1968) and filing multiple petitions or complaints for a cause that has been previously rejected in the false expectation of getting favorable action. (Gabriel vs. Court of Appeals, G.R. No. 43757, July 30, 1976, 72 SCRA 173; Ramos vs. Potenciano, G.R. No. 27104, Dec. 20, 1976, 74 SCRA 345; Macias v. Uy Kim, G.R. No. 31174, May 30, 1972, 45 SCRA 251) Acts of this or similar nature are grounds for disciplinary action." Agpalo Legal Ethics, U.P. Law Center, 1980 Edition, pp. 405-406)

The invocation of constitutional rights by the private respondent is without merit.

WHEREFORE, the petition is GRANTED and the questioned orders of the respondent court are hereby SET ASIDE. Criminal Cases Nos. 0043-M, 0044-M, 0045-M, 0046M, 0047-M, and 0048-M are reinstated and the proper regional trial court is ordered to proceed with all deliberate speed in these cases.

SO ORDERED.

2. JAVELLANA V LUTERO

This is an appeal from a decision of the Court of First Instance of Iloilo (CC 6425) dismissing a petition for relief directed against the judgment rendered by the municipal court of Iloilo City in its civil case 7220.

On March 29, 1963 the Roman Catholic Archbishop of Jaro, Iloilo filed a detainer complaint against Elpidio Javellana with the municipal court of Iloilo City, presided by Judge Nicolas Lutero. The hearing, originally set for April 30, 1963, was postponed to May 24 for failure of the defendant to receive summons, and then postponed again to June 27 for the same reason. It was thereafter postponed to July

16, then to July 24, and finally to August 27, all at the behest of the defendant's Atty. Jose Hautea, on the grounds that "he has not finished his business transactions in Manila" and that "he hurt his right foot toe." The last postponement was granted by the municipal court with the warning that no further postponement would be entertained.

When the case was called for trial on August 27, 1963, neither the defendant nor his counsel Atty. Hautea appeared although one Atty. Romy Peña who was present in court verbally moved for the postponement of the trial on the ground that Atty. Hautea was in Manila attending to a business transaction. The plaintiff's counsel objected to the motion on the ground that the defendant and his counsel were well aware of the court's previous admonition that no further postponement of the case would be granted, and then manifested that the witnesses and the evidence for the plaintiff were ready for presentation on that date. The verbal motion for postponement was denied and the plaintiff was directed to adduce his evidence. During the presentation of the plaintiff's evidence, the municipal court received a telegram from Atty. Hautea requesting postponement of the hearing. The trial proceeded nevertheless, and, on the basis of the plaintiff's evidence, the court on the same date rendered judgment for the plaintiff and against the defendant. The latter's counsel received a copy of the decision on September 9, 1963. On the following September 11, he filed a motion to set aside judgment and for new trial. This motion was denied on September 26; a copy of the order of denial was received by him on the same date.

On November 16, 1963, or about 50 days later, the defendant thru his same counsel filed a petition for relief (from the judgment of the municipal court)with the Court of First Instance of Iloilo, praying that the decision in question be set aside, that the detainer case be set for trial on the merits, and, pending determination of the petition, that an injunction issue restraining the enforcement of the decision. Counsel for the petitioner averred that his absence on the date of the trial was excusable as he attended to a very urgent business transaction in Manila; that before his departure for the latter city, he verbally informed the respondent judge that his return to Iloilo might be delayed and that he might not arrive on time for the trial of the case as set; that he called at both the law office and the residence of the counsel for the private respondent to inform him of the desired postponement and the reason therefor, but the latter was in Bacolod at the time; that he exercised utmost diligence and precaution in the sense that while in Manila he sent a telegram to the respondent judge, asking for postponement; and that notwithstanding all the foregoing, the municipal court nevertheless proceeded with the trial in his absence and that of his client, allowed the private respondent to present his evidence ex parte, and rendered a decision against the petitioner, thus depriving the latter of his day in court. Counsel for the petitioner further asserted that his client has a good and substantial defense, which is, that the complainant had given his client an option to buy the premises subject-matter of the complaint below, and that a reopening of the case would cause the private respondent no real injury.

This petition was given due course, the respondents were required to file their answers, and a cease-and-desist order was issued as prayed for. On February 22, 1964, after due hearing, the Court of First Instance rendered judgment dismissing the petition.1äwphï1.ñët

Hence the present recourse.

From the perspective of the environmental circumstances obtaining in this case, the present appeal is palpably devoid of merit.

A counsel for any party in a judicial controversy, by mandate of the canons of legal ethics, and with due regard for the elementary standards of fair play, is duty bound to prepare for trial with diligence and deliberate speed. This norm of conduct is no less applicable in a detainer case, such as the one at bar, even if the issues are essentially simple and uncomplicated. It is obvious that the counsel for the petitioner-appellant has been remiss in this respect.

The case was set for trial six times. Thrice it was postponed at the behest of the said counsel. The last postponement was granted on July 24, 1963 with the unequivocal admonition by the judgment that no further postponement would be countenanced. The case was reset for hearing on August 27, 1963, which means that the appellant's counsel had more than a month's time to so adjust his schedule of activities as

to obviate a conflict between his business transactions and his calendar of hearings. Came August 27, and neither he nor the appellant appeared at the trial. His absence on the latter date was not occasioned by illness or some other supervening occurrence which unavoidably and justifiably prevented him from appearing in court.

In our view, it was the bounden duty of the said counsel, under the circumstances, to give preferential attention to the case. As things were, he regarded the municipal court as a mere marionette that must ever await his pleasure. This attitude on his part is censurable as it reveals more than just a modicum of disrespect for the judiciary and the established machinery of justice.

Nor is his censurable conduct mitigated by the appearance in court on August 27 of another attorney who verbally moved for postponement nor by his telegram received by the municipal judge on the same date asking for continuance. These circumstances, upon the contrary, emphasize his presumptuousness vis-a-vis the municipal judge.

It is thus crystal-clear from the foregoing disquisition that the petitioner-appellant was not deprived of his day in court, and that the respondent municipal judge did not err in proceeding with the trial, allowing the private respondent to present his evidence ex parte, and thereafter rendering decision for the plaintiff-appellee. It follows that the petitioner was not entitled to the remedy of a petition for relief.

Moreover, after the denial of his motion to set aside judgment and for new trial, the appellant had ample time to appeal; instead he allowed the judgment to become final and executory. His argument that an appeal would have been futile as there was no evidence upon which such appeal could be based, merits scant consideration. An appeal from the decision of a municipal court to the Court of First Instance has the effect of vacating the decision (sec. 9, Rule 40, view Rules of Court; sec. 9, Rule 40, of the old Rules), and the action is to be tried de novo without regard to the proof presented in the municipal court or the conclusions reached thereon (Colegio de San Jose vs. Sison, 56 Phil. 344, 351; Lizo vs. Carandang, 73 Phil. 649; Crisostomo vs. Director of Prisons, 41 Phil. 368). To grant the appellant's petition for relief would amount to reviving his right to appeal which he had irretrievably lost through the gross inaction of his counsel (see Espinosa vs. Yatco, etc., et al., L-16435, Jan. 31, 1963, and the cases therein cited). This in law cannot be done.

Accordingly, the decision appealed from is affirmed. As this appeal is patently frivolous and dilatory, this Court, under the authority of section 3 of Rule 142 of the Rules of Court, hereby assesses treble costs against the petitioner-appellant Elpidio Javellana, said costs to be paid by his counsel, Atty. Jose Hautea.

3. ACHACOSO VS CA

The Court censures the practice of counsels who secure repeated extensions of time to file their pleadings and thereafter simply let the period lapse without submitting the pleading or even an explanation or manifestation of their failure to do so. The Court herein reprimands petitioner's counsel for such misconduct with the warning that a repetition thereof will be dealt with more severely.

Upon the filing on December 15, 1972 of the petition at bar for review of the Court of Appeals' decision dismissing petitioner's petition for mandamus filed with said court to compel the Manila court of first instance to allow petitioner's proposed appeal from its adverse judgment dismissing plaintiff's complaint, the Court per its resolution of December 2, 1972 required respondents to comment thereon.

Respondents filed on February 8, 1973 an extensive eighteen page comment, and petitioner's counsel, Rodrigo M. Nera, filed on February 12, 1973 a motion for leave to file reply within 15 days from notice, alleging that there was need for such reply "in order that this Honorable Court may be fully and completely informed of the nature of the controversy which gave rise to the instant petition." The Court granted such leave per its resolution of February 23, 1973, and notice of such leave was served on counsel on February 27, 1973.

On the last day for filing of the reply, viz, March 14, 1973, counsel asked for an additional 15 days averring that "due to the pressure of urgent professional work and daily trial engagements of the undersigned counsel during the original period granted, he has not had sufficient material time to complete the preparation of petitioner's reply." The Court granted the requested extension per its resolution of March 20, 1973.

On the last day of the extended period for filing of the reply, viz, March 29, 1973, counsel again asked for still another 15-day extension, stating that "due to the pressure of urgent professional work and daily trial engagements of the undersigned counsel, he has not had sufficient material time to complete the preparation of petitioner's reply. The undersigned counsel humbly apologizes that in view of his crowded schedule, he has been constrained to ask for this extension, but respectfully assures the Honorable Court that this will be the last one requested." As per its resolution of April 6, 1973, the Court granted counsel's motion for such third and last extension.

The period for the filing of petitioner's reply lapsed on April 13, 1973 without counsel having filed any reply or manifestation explaining his failure to do so.

Accordingly, the Court in its resolution of May 24, 1973 denying the petition for review for lack of merit, further required petitioner's counsel to show cause why disciplinary action should not be taken against him for failure to file the reply after having obtained such leave and three extensions of time within which to do so.

Counsel filed in due course his verified Explanation dated June 7, 1973, stating that he was retained in the case "on a piece-work basis on the verbal understanding that all expenses for the preparation of pleadings and the cost of services of a stenographer-typist shall be furnished in advance by petitioner upon being notified thereof;" that when he asked for a third extension on March 29, 1973, he so informed petitioner and requested him to "remit the expenses for the preparation of the reply as per agreement" and that he tried to contact petitioner before the expiration of the extended period but failed to do so as petitioner "was then most of the time out of his office."

Counsel relates that it was only on May 30, 1973 when he received notice of the Court's resolution of May 24, 1973 denying the petition and requiring his explanation — long after the expiration on April 13, 1973 of the extended period for the filing of the reply — that he wrote petitioner and in turn asked petitioner to explain the latter's failure to comply with his request for a remittance of P500.00 to cover the necessary expenses, and that petitioner had replied that counsel's letter had been misplaced by a clerk, and hence, petitioner had "failed to act on the same."

Counsel pleads that "this counsel has not the least intention of delaying the administration of justice and much less trifle with the resolutions and orders of this Honorable Court. The inability of this counsel to submit the reply within the third extension granted by this Honorable Court was due to supervening circumstances which could not be attributed to this counsel;" and that "if this poor and humble practitioner has been impelled to inaction, it surely was not intentional on his part, the truth of the matter being that this counsel was just helpless in the face of petitioner's failure to comply with his commitments aforesaid;" and that "this counsel deeply regrets this incident and hereby apologizes to this Honorable Court for all his shortcomings relative to this case, which after all were due to causes and circumstances not of his own making and far beyond his control."

Counsel's explanation is far from satisfactory. If indeed he was not in a financial position to advance the necessary expenses for preparing and submitting the reply, then he could have filed timely the necessary manifestation that he was foregoing the filing of such reply on petitioner's behalf. His inaction unduly delayed the Court's prompt disposition of the case after the filing by respondents on February 8, 1973 of their comments on the petition showing its lack of merit.

The Court would have then so disposed of the petition had it not been for petitioner's plea to be given time and opportunity to file a reply to the comments in order to fully apprise the Court of the nature of the controversy, which plea the Court granted in reliance on his good faith. Yet after having obtained three

extensions of time for the filing of the reply, counsel simply failed to file any reply nor to give the Court the courtesy of any explanation or manifestation for his failure to do so.

Counsel readily perceived in his explanation that his conduct comes close to delaying the administration of justice and trifling with the Court's processes. It does not reflect well on counsel's conduct as an officer of the Court that after assuring the Court that the third extension requested by him "in view of his crowded schedule" and "of urgent professional work and daily trial engagements" would be the last within which period he would at last file the awaited reply, for him thereafter to let the period simply lapse without any explanation whatsoever, and worse, to wait to be found out, and have the Court require him to explain.

Considering, however, that counsel's record shows no previous infractions on his part since his admission to the Philippine Bar in 1953, the Court is disposed to be lenient in this instance.

ACCORDINGLY, the Court hereby administers a reprimand on Atty. Rodrigo M. Nera, with the warning that a repetition of the same or similar acts shall be dealt with more severely. Let a copy of this resolution be filed in his personal record.

4. AUSTRIA VS MASAQUEL

This is a petition for a writ of certiorari to annul or set aside the order of respondent Judge Antonio Masaquel, dated February 10, 1964, in Civil Case No. 13258 of the Court of First Instance of Pangasinan, declaring petitioner Domingo V. Austria guilty of contempt of court and imposing upon him a fine of P50.00.

The facts that gave rise to the incident in question are not disputed. Petitioner was one of the plaintiffs in the above-mentioned Civil Case No. 132581 against Pedro Bravo for the recovery of three parcels of land — one parcel being located at Bayambang and two parcels in San Carlos, in the province of Pangasinan. On April 19, 1963, after trial, respondent Judge rendered a decision declaring the plaintiffs the owners of the three parcels of land in question and ordering the defendant to vacate the lands and pay the plaintiffs damages only with respect to the land located at Bayambang. The plaintiffs filed a motion for the immediate execution of the judgment — which motion was granted by respondent Judge on May 31, 1963 — and, upon the plaintiffs' having posted a surety bond in the sum of P2,000.00, the sheriff placed them in possession of the lands located at San Carlos.

On May 23, 1963, Atty. Mariano C. Sicat, a former assistant or associate of respondent Judge when the latter was still in the practice of law before his appointment to the bench, entered his appearance as the new counsel for defendant Pedro Bravo, vice Attorney Antonio Resngit. On June 14, 1963, the defendant, through Atty. Sicat, filed a supersedeas bond to stay the execution of the judgment, and on June 20, 1963 respondent Judge granted the stay of execution, over the objection of plaintiffs, and ordered the sheriff to restore the possession of the lands in San Carlos to the defendant. The petitioner likewise had asked for the appointment of a receiver over the parcel of land located at Bayambang, which prayer was granted by respondent Judge on July 8, 1963; but upon the filing of a bond by the defendant for the non-appointment of a receiver, the order receivership was set aside. On August 24, 1963, pending the approval of the defendant's amended record on appeal, Atty. Sicat filed a motion for new trial and to set aside the judgment and, over the vigorous objection of plaintiffs, the respondent Judge granted the said motion on November 7, 1963. The hearing on the retrial was finally set for February 10, 1964.

Before the opening of the court's session in the morning of February 10, 1964, Atty. Daniel Macaraeg, counsel for petitioner and his co-plaintiffs, saw respondent Judge in his chamber and verbally transmitted to him the request of petitioner that he (the Judge) inhibit himself from further hearing the case upon the ground that the new counsel for the defendant, Atty. Mariano C. Sikat, was his former associate. The respondent Judge, however, rejected the request because, according to him, the reason for the request of his inhibition is not one of the grounds for disqualification of a judge provided for in the Rules of Court. Thereafter, when the case was called for hearing in open court, the following transpired, as shown by the transcript of the stenographic notes taken during said hearing:2

APPEARANCE:

ATTY. DANIEL C. MACARAEG:

appeared in behalf of plaintiffs. (After the case was called)

COURT:

Your client is here?

ATTY. MACARAEG:

Yes, Your Honor.

COURT:

Where is he?

ATTY. MACARAEG:

He is here, Your Honor.

COURT:

What is your name?

PLAINTIFF:

Domingo Austria, sir.

COURT:

You are one of the plaintiffs in this case?

DOMINGO AUSTRIA:

Yes, sir.

COURT:

Atty. Macaraeg approached me in chambers requesting me to disqualify myself in hearing this case. Did you authorize Atty. Macaraeg to approach me verbally to disqualify myself from hearing this case because the lawyer of the other party was my former assistant?

DOMINGO AUSTRIA:

Yes, sir.

COURT:

Is that your reason why you requested Atty. Macaraeg to approach me, requesting me to disqualify myself simply because the lawyer of the other party was my assistant?

DOMINGO AUSTRIA:

Yes, sir.

COURT:

All right. Do you doubt the integrity of the presiding Judge to decide this case fairly and impartially because the lawyer of the other party was my former assistant? Do you doubt? Just answer the question?

DOMINGO AUSTRIA:

Yes, sir.

COURT:

The Court hereby finds you guilty of contempt of Court and you are hereby ordered to pay a fine of P50.00.

ATTY. MACARAEG:

With due indulgence of this Honorable Court — I have learned, after I have conferred with you in chambers, another ground of the plaintiffs for their requesting me to ask for the disqualification of Your Honor in this case, and this ground consists of the rampant rumor coming from the defendant Pedro Bravo himself that he is boasting in San Carlos that because he has a new lawyer, that surely he is going to win this case.

COURT:

Why did you not wait until the case is finally decided and find out if that is true or not?

ATTY. MACARAEG:

And maybe, that is why the plaintiffs requested me to approach Your Honor because of that rampant rumor that Pedro Bravo is spreading.

COURT:

You mean to say because of that rumor, you are going to doubt my integrity?

ATTY. MACARAEG:

As for me, I entertain no doubt, Your Honor.

COURT:

Your client expressed openly in Court his doubts on the integrity of the Court simply based on rumors and that is a ground for contempt of court, if only to maintain the faith of the people in the courts.

ATTY. MACARAEG:

Taking into consideration that these plaintiffs are laymen and we cannot expect from them the thinking of a lawyer, I am most respectfully praying that the Order of this Court be reconsidered.

COURT:

Denied. Your client should pay a fine of P50.00. We will hear this case this afternoon.

ATTY. MACARAEG:

Yes, Your Honor.

The respondent Judge forthwith dictated the following order:3

Before this Court opened its sessions this morning, Atty. Daniel C. Macaraeg, counsel for the plaintiffs, approached the presiding Judge of this Court in his chambers and manifested the desire of his clients for the Judge to disqualify himself from trying the above-entitled case for the reason that counsel for the defendant, Atty. Marciano C. Sicat was formerly an associate of the Judge of this Court while he was still engaged in the practice of law. To this manifestation of Atty. Macaraeg, the Presiding Judge informed the latter that such fact alone does not in itself constitute a legal ground to disqualify the Presiding Judge of this Court, from trying this case.

When the above-entitled case was called for hearing, the Presiding Judge called on one of the plaintiffs who was present, namely, Domingo Austria, and inquired from the latter if it was true that he asked his lawyer Atty. Macaraeg to approach the Judge in chambers and to ask him to disqualify himself from trying this case because defendant's lawyer, Atty. Sicat was formerly associated with the said Judge. To this query Domingo Austria answered in the affirmative. When he was also asked as to whether the said Domingo Austria has lost faith in the sense of fairness and justice of the Presiding Judge of this Court simply because of his former association with the defendant's lawyer, said Domingo Austria likewise answered in the affirmative.

The Court considers the actuation of the plaintiff Domingo Austria, in the premises, as offensive, insulting and a reflection on the integrity and honesty of the Presiding Judge of this Court and shows his lack of respect to the Court. The said Domingo Austria is not justified and has no reason to entertain doubts in the fairness and integrity of the Presiding Judge of this Court, simply because of the latter's former association with defendant's counsel. For this reason and in order to maintain the people's faith and respect in their courts — the last bulwark in our democratic institutions — the Presiding Judge declared said plaintiff Domingo Austria in direct contempt of court and he was ordered to pay a fine of P50.00.

The Court found from the manifestation of plaintiffs' counsel Atty. Macaraeg that the basis of the statement, of Domingo Austria that he has lost his faith in the Presiding Judge of this Court is the rumors being circulated by the defendant Pedro Bravo that he will surely win in the present case because of his new lawyer, Atty. Marciano C. Sicat. The Court believes that rumors of the sort do not serve as a sufficient basis or justification for the plaintiff Domingo Austria to insinuate bias and partiality, on the part of the Court and to express openly his loss of faith and confidence in the integrity, fairness and capability of the Presiding Judge of this Court to perform his sworn duty of upholding and administering justice, without fear or favor, and by reason of which this Court denied the verbal motion to reconsider filed by counsel for the plaintiff Domingo Austria, finding him guilty of contempt of court and ordering him to pay a fine of P50.00.

SO ORDERED.

Given in open Court this 10th day of February, 1964, at Lingayen, Pangasinan.

Petitioner Domingo Austria, accordingly, paid the fine of P50.00 under protest. Having been punished summarily for direct contempt of court, and the remedy of appeal not being available to him, petitioner filed the instant petition for certiorari before this Court.

It is the position of the petitioner that under the facts and circumstances attendant to the hearing of the Civil Case No. 13250 on February 10, 1063, he had not committed an act of contempt against the court and the respondent Judge had acted in excess of his jurisdiction with grave abuse of discretion when he declared petitioner in direct contempt of court and imposed on him the fine of P50.00 as a penalty.

After a careful study of the record, We find merit in this petition.

The respondent Judge declared the petitioner in direct contempt of court. Our task, therefore, is to determine whether or not the petitioner was guilty of misbehavior in the presence of or so near a court or judge, as to obstruct or interrupt the proceedings before the same, or had committed an act of disrespect toward the court or judge.4

The respondent Judge considered the actuation of the petitioner, in the premises, as offensive, insulting, and a reflection on his integrity and honesty and a showing of lack of respect to the court. The respondent Judge considered that the petitioner was not justified and had no reason to entertain doubts in his fairness and integrity simply because the defendant's counsel was his former associate.1äwphï1.ñët

We do not agree with the respondent Judge. It is our considered view that when the petitioner requested respondent Judge to inhibit himself from further trying the case upon the ground that the counsel for the opposite party was the former associate of the respondent Judge, petitioner did so because he was impelled by a justifiable apprehension which can occur in the mind of a litigant who sees what seems to be an advantage on the part of his adversary; and that the petitioner made his request in a manner that was not disrespectful, much less insulting or offensive to the respondent Judge or to the court.

We are in accord with the statement of respondent Judge in his memorandum that the circumstance invoked by petitioner in asking him to inhibit himself from further trying the case — that Atty. Sicat was his former associate in his practice of law — is not one of the grounds enumerated in the first paragraph of Section 1, Rule 137 of the new Rules of Court for disqualifying a judge. While it is true that respondent Judge may not be compelled to disqualify himself, the fact that Atty. Sicat, admittedly his former associate, was counsel for a party in the case being tried by him, may constitute a just or valid reason for him to voluntarily inhibit himself from hearing the case on a retrial, if he so decides, pursuant to the provision of the second paragraph of Section 1 of the said Rule 137.5

The apprehension of petitioner regarding the probable bias of respondent Judge does not appear to be groundless or entirely devoid of reason. The respondent Judge had decided the case in favor of petitioner and his co-plaintiffs, and that upon plaintiffs' timely motion and filing of bond they were already placed in possession of the lands in question pending appeal. It was when Atty. Sicat took over as new counsel for defendant that the latter was given back the properties, upon a motion to stay the execution of the judgment which was filed by said counsel and was granted by respondent Judge over the opposition of petitioner's counsel. Again, when the same counsel for defendant filed a motion for a new trial, said motion was granted by respondent Judge in spite of the vigorous objection of counsel for the petitioner and his co-plaintiffs. And then the petitioner became aware of the fact that his adversary, the defendant Pedro Bravo, had been boasting in San Carlos that he was sure to win his case because of his new lawyer.

We believe that the petitioner — the layman that he is — did not take a belligerent or arrogant attitude toward respondent Judge. What he did was to request his lawyer, Atty. Macaraeg, to approach respondent Judge in his chamber and suggest to him to refrain from hearing the case on the new trial, precisely in order that respondent Judge might not be embarrassed or exposed to public odium. There is nothing in the record which shows that when respondent Judge refused to disqualify himself, the petitioner insisted in asking for his disqualification. If the request of petitioner for respondent Judge to disqualify himself came to the knowledge of the public it was because respondent Judge himself brought up the matter in open court.

While We consider it improper for a litigant or counsel to see a judge in chambers and talk to him about a matter related to the case pending in the court of said judge, in the case now before Us We do not consider it as an act of contempt of court when petitioner asked his counsel to see respondent Judge in his chamber and request him to disqualify himself upon a ground which respondent Judge might consider just or valid. It is one thing to act not in accordance with the rules, and another thing to act in a manner which would amount to a disrespect or an affront to the dignity of the court or judge. We believe that the circumstances that led respondent Judge to declare petitioner in direct contempt of court do not indicate any deliberate design on the part of petitioner to disrespect respondent Judge or to cast aspersion against his integrity as a judge. On the contrary, it may be said that petitioner wanted to avoid cause for any one

to doubt the integrity of respondent Judge. This is so because when a party litigant desires or suggests the voluntary disqualification of a judge, it is understood, without saying it in so many words, that said litigant — having knowledge of the past or present relationship of the judge with the other party or counsel — feels that no matter how upright the judge is there is peril of his being unconsciously swayed by his former connection and he may unwittingly render a biased or unfair decision. Hence, while it may be conceded that in requesting the disqualification of a judge by reason of his relation with a party or counsel there is some implication of the probability of his being partial to one side, the request can not constitute contempt of court if done honestly and in a respectful manner, as was done by petitioner in the present case. Perhaps the fault of petitioner, if at all, is his having asked his counsel to make the request to respondent Judge inside the latter's chamber.

The following observation of this Court, speaking through Mr. Justice Dizon, is relevant to the question before Us:

Petitioner invoking the provisions of section 1, Rule 126 of the Rules of Court, argues that the case of respondent judge does not fall under any one of the grounds for the disqualification of judicial officers stated therein. Assuming arguendo that a literal interpretation of the legal provision relied upon justifies petitioner's contention to a certain degree, it should not be forgotten that, in construing and applying said legal provision, we cannot disregard its true intention nor the real ground for the disqualification of a judge or judicial officer, which is the impossibility of rendering an impartial judgment upon the matter before him. It has been said, in fact, that due process of law requires a hearing before an impartial and disinterested tribunal, and that every litigant is entitled to nothing less than the cold neutrality of an impartial judge (30 Am. Jur. p. 767). Moreover, second only to the duty of rendering a just decision, is the duty of doing it in a manner that will not arouse any suspicion as to its fairness and the integrity of the Judge. Consequently, we take it to be the true intention of the law — stated in general terms — that no judge shall preside in a case in which he is not wholly free, disinterested, impartial and independent (30 Am. Jur. supra) . . . . 6 (Emphasis supplied).

It is in line with the above-quoted observation that this Court, in amending the Rules of Court, added the second paragraph under Section 1 of Rule 137, which provides that a judge in the exercise of his sound discretion may disqualify himself from sitting in a case for just or valid grounds other than those specifically mentioned in the first paragraph of said section.7 "The courts should administer justice free from suspicion or bias and prejudice; otherwise, parties litigants might lose confidence in the judiciary and destroy its nobleness and decorum." 8

Respondent Judge declared petitioner in contempt of court after the latter answered "Yes, sir" to this question of the judge: "Do you doubt the integrity of the presiding Judge to decide this case fairly and impartially because the lawyer of the other party was my former assistant? Do you doubt? Just answer the question?" We believe that petitioner had not committed an act amounting to contempt of court when he made that answer. The petitioner had not misbehaved in court, or in the presence of respondent Judge, as to obstruct or interrupt the proceedings. Neither did the petitioner act in a manner that was disrespectful to respondent Judge. When petitioner answered "Yes, sir" to the question asked by respondent Judge, petitioner simply expressed his sincere feeling under the circumstances. In order that a person may be summarily punished for direct contempt of court, it must appear that his behavior or his utterance tends to obstruct the proceedings in court, or constitutes an affront to the dignity of the court. As stated by this Court, "Contempt of court presupposes a contumacious attitude, a flouting or arrogant belligerence, a defiance of the court . . . ."9

We commend the zeal shown by respondent Judge in his effort to protect his own integrity and the dignity of the court. We are constrained to say, however, that he had gone a little farther than what was necessary under the circumstances. We are inclined to believe that respondent Judge felt offended when petitioner answered "Yes, sir" to the question adverted to in the preceding paragraph. But the petitioner was simply truthful and candid to the court when he gave that answer. It would have been unfair to respondent Judge had petitioner answered "No, sir," because then he would not be sincere with the court, and he would be inconsistent with the request that he made through his counsel for respondent Judge to inhibit himself from further hearing the case. When respondent Judge asked that question, he necessarily

expected a truthful answer from petitioner, and indeed petitioner gave him the truthful answer. We are not persuaded that in so answering petitioner meant to be disrespectful, offensive or insulting to respondent Judge. Nor do We consider that in so answering petitioner meant to cast reflection on the integrity and honesty of respondent Judge. We believe that in so answering the petitioner was simply manifesting the misgiving of an ordinary layman about the outcome of his case that is going to be tried by a judge who has been closely associated with the counsel for his adversary. The petitioner would never have expressed that misgiving of his had respondent Judge not asked him in open court a question that evoked that answer. A judge can not prevent any person — even a litigant or counsel in a case before him — to entertain in his mind an opinion about him as a judge. Certainly, any person is entitled to his opinion about a judge, whether that opinion is flattering to the judge, or not. It would be different if a person would deliberately and maliciously express an adverse opinion about a judge, without reason, but simply to malign and discredit the judge. In the case now before Us We believe that petitioner did not mean to malign or discredit respondent Judge in answering as he did. It can be said that petitioner was simply moved by a desire to protect his interests in the case pending before the court, presided by respondent Judge. A citizen of this Republic is entitled to expect that our courts of justice are presided by judges who are free from bias and prejudice — and it should not be made a count against the citizen if he so expresses himself truthfully, sincerely, and respectfully. A judge, as a public servant, should not be so thin-skinned or sensitive as to feel hurt or offended if a citizen expresses an honest opinion about him which may not altogether be flattering to him. 10 After all, what matters is that a judge performs his duties in accordance with the dictates of his conscience and the light that God has given him. A judge should never allow himself to be moved by pride, prejudice, passion, or pettiness in the performance of his duties. And a judge should always bear in mind that the power of the court to punish for contempt should be exercised for purposes that are impersonal, because that power is intended as a safeguard not for the judges as persons but for the functions that they exercise.

It is worth mentioning here that numerous cases there have been where judges, and even members of this Court, were asked to inhibit themselves from trying, or from participating in the consideration of, a case, but scarcely were the movants punished for contempt even if the grounds upon which they based their motions for disqualification are not among those provided in the rules. It is only when there was direct imputation of bias or prejudice, or a stubborn insistence to disqualify the judge, done in a malicious, arrogant, belligerent and disrespectful manner, that movants were held in contempt of court. 11 And this liberal attitude of the courts is in keeping with the doctrine that "The power to punish for contempt of court should be exercised on the preservative and not on the vindictive principle. Only occasionally should the court invoke its inherent power in order to retain that respect without which the administration of justice must falter or fail." 12 The power to punish for contempt, being drastic and extraordinary in its nature, should not be resorted to unless necessary in the interest of justice. 13

Wherefore, the order of respondent Judge dated February 10, 1964, in Civil Case No. 13259 of the Court of First Instance of Pangasinan, declaring petitioner in direct contempt of court and ordering him to pay a fine of P50.00, is hereby annulled and set aside; and it is ordered that the sum of P50.00, paid under protest by petitioner as a fine, be refunded to him. No costs. It is so ordered.

5. LEDESMA VS CLIMACO

What is assailed in this certiorari proceeding is an order of respondent Judge denying a motion filed by petitioner to be allowed to withdraw as counsel de oficio. 1 One of the grounds for such a motion was his allegation that with his appointment as Election Registrar by the Commission on Elections, he was not in a position to devote full time to the defense of the two accused. The denial by respondent Judge of such a plea, notwithstanding the conformity of the defendants, was due "its principal effect [being] to delay this case." 2 It was likewise noted that the prosecution had already rested and that petitioner was previously counsel de parte, his designation in the former category being precisely to protect him in his new position without prejudicing the accused. It cannot be plausibly asserted that such failure to allow withdrawal of de oficio counsel could ordinarily be characterized as a grave abuse of discretion correctible by certiorari. There is, however, the overriding concern for the right to counsel of the accused that must be taken seriously into consideration. In appropriate cases, it should tilt the balance. This is not one of them. What is easily discernible was the obvious reluctance of petitioner to comply with the responsibilities incumbent

on the counsel de oficio. Then, too, even on the assumption that he continues in his position, his volume of work is likely to be very much less at present. There is not now the slightest pretext for him to shirk an obligation a member of the bar, who expects to remain in good standing, should fulfill. The petition is clearly without merit.

According to the undisputed facts, petitioner, on October 13, 1964, was appointed Election Registrar for the Municipality of Cadiz, Province of Negros Occidental. Then and there, he commenced to discharge its duties. As he was counsel de parte for one of the accused in a case pending in the sala of respondent Judge, he filed a motion to withdraw as such. Not only did respondent Judge deny such motion, but he also appointed him counsel de oficio for the two defendants. Subsequently, on November 3, 1964, petitioner filed an urgent motion to be allowed to withdraw as counsel de oficio, premised on the policy of the Commission on Elections to require full time service as well as on the volume or pressure of work of petitioner, which could prevent him from handling adequately the defense. Respondent Judge, in the challenged order of November 6, 1964, denied said motion. A motion for reconsideration having proved futile, he instituted this certiorari proceeding. 3

As noted at the outset, the petition must fail.

1. The assailed order of November 6, 1964 denying the urgent motion of petitioner to withdraw as counsel de oficio speaks for itself. It began with a reminder that a crime was allegedly committed on February 17, 1962, with the proceedings having started in the municipal court of Cadiz on July 11, 1962. Then respondent Judge spoke of his order of October 16, 1964 which reads thus: "In view of the objection of the prosecution to the motion for postponement of October 15, 1964 (alleging that counsel for the accused cannot continue appearing in this case without the express authority of the Commission on Elections); and since according to the prosecution there are two witnesses who are ready to take the stand, after which the government would rest, the motion for postponement is denied. When counsel for the accused assumed office as Election Registrar on October 13, 1964, he knew since October 2, 1964 that the trial would be resumed today. Nevertheless, in order not to prejudice the civil service status of counsel for the accused, he is hereby designated counsel de oficio for the accused. The defense obtained postponements on May 17, 1963, June 13, 1963, June 14, 1963, October 28, 1963, November 27, 1963, February 11, 1964, March 9, 1964, June 8, 1964 July 26, 1964, and September 7, 1964." 4 Reference was then made to another order of February 11, 1964: "Upon petition of Atty. Adelino H. Ledesma, alleging indisposition, the continuation of the trial of this case is hereby transferred to March 9, 1964 at 8:30 in the morning. The defense is reminded that at its instance, this case has been postponed at least eight (8) times, and that the government witnesses have to come all the way from Manapala." 5 After which, it was noted in such order that there was no incompatibility between the duty of petitioner to the accused and to the court and the performance of his task as an election registrar of the Commission on Elections and that the ends of justice "would be served by allowing and requiring Mr. Ledesma to continue as counsel de oficio, since the prosecution has already rested its case." 6

2. What is readily apparent therefore, is that petitioner was less than duly mindful of his obligation as counsel de oficio. He ought to have known that membership in the bar is a privilege burdened with conditions. It could be that for some lawyers, especially the neophytes in the profession, being appointed counsel de oficio is an irksome chore. For those holding such belief, it may come as a surprise that counsel of repute and of eminence welcome such an opportunity. It makes even more manifest that law is indeed a profession dedicated to the ideal of service and not a mere trade. It is understandable then why a high degree of fidelity to duty is required of one so designated. A recent statement of the doctrine is found in People v. Daban: 7 "There is need anew in this disciplinary proceeding to lay stress on the fundamental postulate that membership in the bar carries with it a responsibility to live up to its exacting standard. The law is a profession, not a trade or a craft. Those enrolled in its ranks are called upon to aid in the performance of one of the basic purposes of the State, the administration of justice. To avoid any frustration thereof, especially in the case of an indigent defendant, a lawyer may be required to act as counsel de oficio. The fact that his services are rendered without remuneration should not occasion a diminution in his zeal. Rather the contrary. This is not, of course, to ignore that other pressing matters do compete for his attention. After all, he has his practice to attend to. That circumstance possesses a high

degree of relevance since a lawyer has to live; certainly he cannot afford either to neglect his paying cases. Nonetheless, what is incumbent upon him as counsel de oficio must be fulfilled." 8

So it has been from the 1905 decision of In re Robles Lahesa, 9 where respondent was de oficio counsel, the opinion penned by Justice Carson making clear: "This Court should exact from its officers and subordinates the most scrupulous performance of their official duties, especially when negligence in the performance of those duties necessarily results in delays in the prosecution of criminal cases ...." 10 Justice Sanchez in People v. Estebia 11 reiterated such a view in these words: "It is true that he is a court-appointed counsel. But we do say that as such counsel de oficio, he has as high a duty to the accused as one employed and paid by defendant himself. Because, as in the case of the latter, he must exercise his best efforts and professional ability in behalf of the person assigned to his care. He is to render effective assistance. The accused-defendant expects of him due diligence, not mere perfunctory representation. For, indeed a lawyer who is a vanguard in the bastion of justice is expected to have a bigger dose of social conscience and a little less of self-interest." 12

The weakness of the petition is thus quite evident.

3. If respondent Judge were required to answer the petition, it was only due to the apprehension that considering the frame of mind of a counsel loath and reluctant to fulfill his obligation, the welfare of the accused could be prejudiced. His right to counsel could in effect be rendered nugatory. Its importance was rightfully stressed by Chief Justice Moran in People v. Holgado in these words: "In criminal cases there can be no fair hearing unless the accused be given an opportunity to be heard by counsel. The right to be heard would be of little avail if it does not include the right to be heard by counsel. Even the most intelligent or educated man may have no skill in the science of law, particularly in the rules of procedure, and; without counsel, he may be convicted not because he is guilty but because he does not know how to establish his innocence. And this can happen more easily to persons who are ignorant or uneducated. It is for this reason that the right to be assisted by counsel is deemed so important that it has become a constitutional right and it is so implemented that under rules of procedure it is not enough for the Court to apprise an accused of his right to have an attorney, it is not enough to ask him whether he desires the aid of an attorney, but it is essential that the court should assign one de oficio for him if he so desires and he is poor or grant him a reasonable time to procure an attorney of his own." 13 So it was under the previous Organic Acts. 14 The present Constitution is even more emphatic. For, in addition to reiterating that the accused "shall enjoy the right to be heard by himself and counsel," 15 there is this new provision: "Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence." 16

Thus is made manifest the indispensable role of a member of the Bar in the defense of an accused. Such a consideration could have sufficed for petitioner not being allowed to withdraw as counsel de oficio. For he did betray by his moves his lack of enthusiasm for the task entrusted to him, to put matters mildly. He did point though to his responsibility as an election registrar. Assuming his good faith, no such excuse could be availed now. There is not likely at present, and in the immediate future, an exorbitant demand on his time. It may likewise be assumed, considering what has been set forth above, that petitioner would exert himself sufficiently to perform his task as defense counsel with competence, if not with zeal, if only to erase doubts as to his fitness to remain a member of the profession in good standing. The admonition is ever timely for those enrolled in the ranks of legal practitioners that there are times, and this is one of them, when duty to court and to client takes precedence over the promptings of self-interest.

WHEREFORE, the petition for certiorari is dismissed. Costs against petitioner.

6. STA. MARIA VS TUASON

IN THE MATTER OF THE PETITION FOR THE DISBARMENT OF ATTORNEY EDUARDO M. TUASON. EMILIO C. STA. MARIA, petitioner.

Sometime in June, 1955, respondent Atty. Eduardo M. Tuason represented petitioner Emilio C. Sta. Maria. and his two partners Andres Guanzon and Fausto E. Chincuanco in prosecuting Civil Case No. 894, CFI of Pampanga, entitled "Fausto E. Chincuanco, et al. v. Enriqueta M. de Hidalgo, et al", a collection case involving a promissory note of P50,000.00. Defendant Enriqueta M. de Hidalgo was declared in default, and the Court rendered judgment on October 8, 1955, ordering the defendant de Hidalgo to pay: —

(a) Plaintiffs the sum of P30,000.00 with interests thereon at the rate of six percent (6%) per annum from June 18, 1955, the date of the filing of the complaint, until the same shall have been fully paid, plus the sum of P3,500.00 as plaintiffs' attorney's fees;

(b) Plaintiff Andres A. Guanzon the other sum of P3,000.00 as compensation for the injury caused to him in his credit standing; and

(c) Plaintiff Fausto E. Chincuanco another sum of P3,000.00 as compensation for the injury caused to him in his credit standing.

On December 9, 1955, a writ of execution was issued. Sufficient amount of money to satisfy the judgment, came into the hands of the Provincial Sheriff of Pampanga. Respondent Tuason, on September 10, 1958, obtained from the Sheriff, the amount of P22,930.64, which he (Tuason) applied in the following manner: (1) P10,000.00 for his alleged attorney's fees; (2) P1,648.00 to supposed expenses of litigation, which he claimed to have advanced in the prosecution of the case; and (3) the balance of P11,282.64, to plaintiff Fausto E. Chincuanco, his uncle.

Petitioner claims that respondent Tuason deprived him of his lawful share in the judgment which was P25,511.62; that respondent was not entitled to P10,000.00 as attorney's fees because even the lower court awarded him only P3,500.00; that the foregoing acts were done, without the prior knowledge and consent of petitioner.

Upon finding that the respondent withdrew the P22,930.64 from the Office of the Provincial Sheriff, complainant Sta. Maria repaired to the office of Atty. Tuason and demanded the amount to be turned over to him, or to the Sheriff for proper disposition by the Court; that upon failure of respondent to comply with any of the two things, contempt proceedings were instituted against respondent Tuason. In view, however, of the claim of Tuason that he gave the money to Guanzon and Chincuanco, petitioner filed with the CFI of Pampanga, Civil Case No. 1704, against said Tuason, Guanzon and Chincuanco, for collection of his rightful share in the judgment in Civil Case No. 894.

Respondent, in his Answer, admitted having received the amounts in question from the Sheriff of Pampanga, and disbursed the same in the manner stated by petitioner, but he denied that he obtained and disbursed the amounts, without the knowledge and consent of the petitioner; the truth of the matter being that he was given full authority by petitioner's partners (Guanzon and Chincuanco) to receive P10,000.00 for his services; that the two were the ones who engaged his services in the prosecution of Civil Case No. 894, for their own behalf and in behalf of petitioner himself; that he delivered the balance of the amount, to Chincuanco, who was the one who had actually retained his services and who took charge of liquidating the accounts with his partners.

The matter was referred to the Office of the Solicitor General who made the following findings and recommendations:

The foregoing evidence presented by the parties involves two issues, namely; (1) Whether the respondent was in connivance with Fausto Chincuanco and Andres Guanzon in delivering to them the full amount of P22,930.64 and thereby deprived the petitioner from getting his rightful share in the liquidation of assets of the partnership and (2) whether the respondent was guilty of malpractice and gross misconduct in withholding the amount of P10,000 as his attorney's fees and also the amount of P1,648 as alleged expenses in the litigation.

The complainant in this case contends that the respondent committed malpractice in delivering the proceeds of the judgment money to Fausto Chincuanco, his uncle, and Andres Guanzon, his close business associate (p. 17, tsn, July 10, 1961; p. 6, rec.).

As to the first issue, the petitioner claims that he was unable to collect his rightful share in the liquidation of the funds of the partnership as agreed upon by the partners (Exh. E, pp. 3-4, tsn, June 15, 1960) for which reason, he had to file a civil case against his partners. He attributes this failure mainly to the respondent who delivered the judgment money to Chincuanco, his partner, who disposed of the whole amount in the manner already indicated earlier. While it is true that Fausto Chincuanco and Guanzon, the latter being the general manager from the Sheriff (Exh. C, p. 14, rec.), there is no clear evidence presented to show that the respondent connived with either Chincuanco or Guanzon on delivering the judgment money to them for the purpose of depriving the complainant of his rightful share in the partnership. What the respondent did in this case was to deliver the judgment money to the partnership through Chincuanco and Guanzons the latter being the general manager. The proper action for the complainant was to demand his share from Guanzon, the managing partner, or from Chincuanco, the other partner. This he did by filing a complaint in the Court of First Instance of Pampanga (see Civil Case No. 1704, Exh. 2). In this case Atty. Eduardo Tuason, the herein respondent, was included as defendant. A contempt proceeding was also filed by complainant, citing Atty. Tuason and the Sheriff of Pampanga as respondents. It appears, however, that an amicable settlement was finally agreed upon by the parties in this civil case resulting in a compromise agreement, duly approved by the Court of First Instance of Pampanga, wherein the plaintiff waived all his claim against his other partners. In said compromise agreement the plaintiff also agreed not to proceed with the contempt case he filed against Atty. Tuason and the Sheriff of Pampanga (Exhs. 2, 3 and 5, folder of exhibits).

The issue, therefore, revolves more on the division of the partnership assets rather than on the right of the complainant to compel the respondent to turn over to him part of the judgment money which respondent applied as his attorney's fees and reimbursement for his expenses in connection with the litigation he handled for the partners. Under the foregoing circumstances, the undersigned investigator is of the opinion that the respondent Tuason has not committed any act that will constitute malpractice or gross misconduct in office.

Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted and approved by this Honorable Court, without prejudice to the parties adducing other evidence to prove their case not covered by this stipulation of facts. 1äwphï1.ñët

As to the second issue, there is no dispute that the respondent collected the amount of P10,000 as attorney's fees for a collection suit in the amount of P50,000.00 based on a promissory note. It appears that since the defendant was declared in default, the case was terminated after one brief hearing. The respondent also collected P1,648 as alleged expenses incurred in connection with the litigation. No satisfactory evidence, however, was presented to show that the respondent actually spent that amount. On the other hand, there was the undisputed evidence which shows that the case represented by the respondent was terminated with one brief hearing after the defendant was declared in default. There is, likewise, no dispute that said attorney's fees and litigation expenses were deducted from the judgment money collected by the respondent from the Sheriff of Pampanga. This act of the respondent seems to be irregular, if not suspicious, considering his close relationship with Mr. Chincuanco. Notwithstanding the opinion of Mr. Guanzon, the amount of P10,000 for attorney's fees is, to our mind, also unreasonable under the circumstances. It is to be noted in this connection that the respondent himself alleged in the complaint he filed for the partnership that "the plaintiffs will incur for attorney's fees and expenses of the litigation P6,000" (u 9, Rec.).

Moreover, the circumstances of the case show that the respondent took advantage of the fact that he was a nephew of Fausto Chincuanco and a close associate of Andres Guanzon in collecting his lawyer's fees. Even at the time that the respondent was already representing the partnership, the complainant inquired from Chincuanco about the respondent's fees. In reply Chincuanco said that he (Sta. Maria) should not worry about it because the respondent is a nephew of his. On this assurance, the complainant could be said to have assumed that the respondent would not collect an excessive amount, much less take

advantage of his relationship with one of the partners by retaining the funds, considering that the case was one of a simple collection based on a promissory note. The act of the respondent in collecting P10,000 for attorney's fees and alleged expenses he incurred in the litigation, aggravated the burden of the complainant who claims that he was not given his due share in the distribution of the assets of the partnership as his two partners were already in possession of the money. While it is true that the partners of the complainant apparently acceded to the respondent's acts, it cannot be denied that the latter acted with indiscretion, induced by his close relationship with Chincuanco to the prejudice of the complainant. In effect, respondent's act constituted a retention of the funds of his client, an act of professional indiscretion bordering on misbehaviour.

Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted and approved by this Honorable Court, without prejudice to the parties adducing other evidence to prove their case not covered by this stipulation of facts. 1äwphï1.ñët

It may be stated, however, that the respondent may have felt justified in his acts, since they were done with apparent acquiescence of his clients, Fausto Chincuanco and Andres Guanzon. Moreover, an amicable settlement of all the suits filed by the herein complainant resulted in a compromise agreement, whereby the complainant waived any and all claims against his partners and the respondent arising from the transactions which are the subject matter of the controversy, as well as from the incidents thereof (Exh. 2, folder of exhibits). While it may be said that this compromise agreement may not affect the misconduct of the respondent as a member of the bar, at least, it cannot be denied that the complainant has, in effect, condoned respondent's acts.

RECOMMENDATION

IN VIEW OF THE FOREGOING, it is respectfully recommended that instead of a more severe penalty which he would otherwise deserve, the respondent be reprimanded for professional indiscretion, with the warning that a more severe penalty be imposed for a repetition of same or similar acts.

The report of the Solicitor General was duly set for hearing, by this Court. Respondent excepted from the recommendation which called for the imposition of a reprimand. Respondent points out that the findings of the Solicitor General did not warrant his recommendation, since he found that respondent "has not committed any act that will constitute malpractice or gross misconduct in office." Respondent also claims that the filing of different proceedings against him was simply intended to harass and embarrass him, because of petitioner's dissatisfaction over the disposition by his partners, of the award in Civil Case No. 894.

After an overall consideration of the facts and circumstances surrounding the case, We find that the findings and conclusions of the Solicitor General are supported by the evidence of record. The fact that the respondent has placed his private and personal interest over and above that of his clients constitutes a breach of a lawyer's oath, to say the least. Call it professional indiscretion or any other name, but the cold fact remains that the act, as found by the Solicitor General, is not conducive to a healthy growth of the legal profession. The respondent is hereby admonished that a repetition of similar acts will merit more drastic action.

Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted and approved by this Honorable Court, without prejudice to the parties adducing other evidence to prove their case not covered by this stipulation of facts.

8. DOMINADOR VS MAGULTA

SYNOPSIS

Respondent lawyer was introduced to complainant at the Respicio, Magulta and Adan Law Offices who agreed to legally represent the latter in a money claim and a possible civil case against certain parties for breach of contract. Upon respondent's instruction, complainant deposited the amount of P25,000.00

allegedly for the filing fees of the case to be filed. A week later, complainant was informed by respondent that the complaint had already been filed in court. In the months that followed, complainant did not receive any notice from the court. Complainant also frequented respondent's office to inquire, but the latter repeatedly told him each time to just wait. Sensing that he was being given the run-around by respondent, complainant went to the Office of the Clerk of Court to verify the progress of the case and found out that there was no record at all filed by respondent on his behalf. Feeling disgusted for the inconvenience and deception of respondent who admitted that he had spent the money for the filing fee for his own use, complainant filed with the Commission on Bar Discipline of the Integrated Bar of the Philippines a complaint against respondent for misrepresentation, dishonesty and oppressive conduct. The Commission submitted its Report and Recommendation to the Court recommending that respondent be suspended from the practice of law for a period of one (1) year.

The Supreme Court affirmed the recommendation of the Commission. In failing to apply to the filing fee the amount given by complainant, respondent violated the rule that lawyers must be scrupulously careful in handling money entrusted to them in their professional capacity. Rule 16.01 of the Code of Professional Responsibility states that lawyers shall hold in trust all moneys of their clients and properties that may come into their possession. The Court also stressed that after agreeing to take up the cause of a client, a lawyer owes fidelity to both cause and client, even if the client never paid any fee for the attorney-client relationship and lawyering is not a business; it is a profession in which duty to public service, not money, is the primary consideration.

SYLLABUS

1.LEGAL ETHICS; ATTORNEYS; AFTER AGREEING TO TAKE UP A CAUSE OF CLIENT, A LAWYER OWES FIDELITY TO SUCH CAUSE AND MUST ALWAYS BE MINDFUL OF THE TRUST AND CONFIDENCE REPOSED IN THEM. — A lawyer-client relationship was established from the very first moment complainant asked respondent for legal advice regarding the former's business. To constitute professional employment, it is not essential that the client employed the attorney professionally on any previous occasion. It is not necessary that any retainer be paid, promised, or charged; neither is it material that the attorney consulted did not afterward handle the case for which his service had been sought. If a person, in respect to business affairs or troubles of any kind, consults a lawyer with a view to obtaining professional advice or assistance, and the attorney voluntarily permits or acquiesces with the consultation, then the professional employment is established. Likewise, a lawyer-client relationship exists notwithstanding the close personal relationship between the lawyer and the complainant or the nonpayment of the former's fees. Hence, despite the fact that complainant was kumpadre of a law partner of respondent, and that respondent dispensed legal advice to complainant as a personal favor to the kumpadre, the lawyer was duty-bound to file the complaint he had agreed to prepare — and had actually prepared — at the soonest possible time, in order to protect the client's interest. Rule 18.03 of the Code of Professional Responsibility provides that lawyers should not neglect legal matters entrusted to them. This Court has likewise constantly held that once lawyers agree to take up the cause of a client, they owe fidelity to such cause and must always be mindful of the trust and confidence reposed in them. They owe entire devotion to the interest of the client, warm zeal in the maintenance and the defense of the client's rights, and the exertion of their utmost learning and abilities to the end that nothing be taken or withheld from the client, save by the rules of law legally applied.

2.ID.; ID.; LAWYERING IS NOT A BUSINESS; IT IS A PROFESSION IN WHICH DUTY TO PUBLIC SERVICE, NOT MONEY, IS THE PRIMARY CONSIDERATION. — In this day and age, members of the bar often forget that the practice of law is a profession and not a business. Lawyering is not primarily meant to be a money-making venture, and law advocacy is not a capital that necessarily yields profits. The gaining of a livelihood is not a professional but a secondary consideration. Duty to public service and to the administration of justice should be the primary consideration of lawyers, who must subordinate their personal interests or what they owe to themselves. The practice of law is a noble calling in which emolument is a by-product, and the highest eminence may be attained without making much money. HSEcTC

3.ID.; ID.; LAWYERS WHO CONVERT THE FUNDS ENTRUSTED TO THEM ARE IN GROSS VIOLATION OF PROFESSIONAL ETHICS AND ARE GUILTY OF BETRAYAL OF PUBLIC CONFIDENCE IN THE LEGAL PROFESSION; CASE AT BAR. — In failing to apply to the filing fee the amount given by complainant — as evidenced by the receipt issued by the law office of respondent — the latter also violated the rule that lawyers must be scrupulously careful in handling money entrusted to them in their professional capacity. Rule 16.01 of the Code of Professional Responsibility states that lawyers shall hold in trust all moneys of their clients and properties that may come into their possession. Lawyers who convert the funds entrusted to them are in gross violation of professional ethics and are guilty of betrayal of public confidence in the legal profession. It may be true that they have a lien upon the client's funds, documents and other papers that have lawfully come into their possession; that they may retain them until their lawful fees and disbursements have been paid; and that they may apply such funds to the satisfaction of such fees and disbursements. However, these considerations do not relieve them of their duty to promptly account for the moneys they received. Their failure to do so constitutes professional misconduct. In any event, they must still exert all effort to protect their client's interest within the bounds of law. If much is demanded from an attorney, it is because the entrusted privilege to practice law carries with it correlative duties not only to the client but also to the court, to the bar, and to the public. Respondent fell short of this standard when he converted into his legal fees the filing fee entrusted to him by his client and thus failed to file the complaint promptly. The fact that the former returned the amount does not exculpate him from his breach of duty.

D E C I S I O N

PANGANIBAN, J p:

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

The Case

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

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

"That consequent to such agreement, Atty. Alberto C. Magulta prepared for me the demand letter and some other legal papers, for which services I have accordingly paid; inasmuch, however, that I failed to secure a settlement of the dispute, Atty. Magulta suggested that I file the necessary complaint, which he subsequently drafted, copy of which is attached as Annex A, the filing fee whereof will require the amount of Twenty-Five Thousand Pesos (P25,000.00);

"That having the need to legally recover from the parties to be sued I, on January 4, 1999, deposited the amount of P25,000.00 to Atty. Alberto C. Magulta, copy of the Receipt attached as Annex B, upon the instruction that I needed the case filed immediately;

"That a week later, I was informed by Atty. Alberto C. Magulta that the complaint had already been filed in court, and that I should receive notice of its progress;

"That in the months that followed, I waited for such notice from the court or from Atty. Magulta but there seemed to be no progress in my case, such that I frequented his office to inquire, and he would repeatedly tell me just to wait;

"That I had grown impatient on the case, considering that I am told to wait [every time] I asked; and in my last visit to Atty. Magulta last May 25, 1999, he said that the court personnel had not yet acted on my case and, for my satisfaction, he even brought me to the Hall of Justice Building at Ecoland, Davao City, at about 4:00 p.m., where he left me at the Office of the City Prosecutor at the ground floor of the building and told to wait while he personally follows up the processes with the Clerk of Court; whereupon, within the hour, he came back and told me that the Clerk of Court was absent on that day;

"That sensing I was being given the run-around by Atty. Magulta, I decided to go to the Office of the Clerk of Court with my draft of Atty. Magulta's complaint to personally verify the progress of my case, and there told that there was no record at all of a case filed by Atty. Alberto C. Magulta on my behalf, copy of the Certification dated May 27, 1999, attached as Annex C;

"That feeling disgusted by the way I was lied to and treated, I confronted Atty. Alberto C. Magulta at his office the following day; May 28, 1999, where he continued to lie to with the excuse that the delay was being caused by the court personnel, and only when shown the certification did he admit that he has not at all filed the complaint because he had spent the money for the filing fee for his own purpose; and to appease my feelings, he offered to reimburse me by issuing two (2) checks, postdated June 1 and June 5, 1999, in the amounts of P12,000.00 and P8,000.00, respectively, copies of which are attached as Annexes D and E;

"That for the inconvenience, treatment and deception I was made to suffer, I wish to complain Atty. Alberto C. Magulta for misrepresentation, dishonesty and oppressive conduct;"

xxx xxx xxx. 1

On August 6, 1999, pursuant to the July 22, 1999 Order of the IBP Commission on Bar Discipline, 2 respondent filed his Answer 3 vehemently denying the allegations of complainant "for being totally outrageous and baseless." The latter had allegedly been introduced as a kumpadre of one of the former's law partners. After their meeting, complainant requested him to draft a demand letter against Regwill Industries, Inc. — a service for which the former never paid. After Mr. Said Sayre, one of the business partners of complainant, replied to this letter, the latter requested that another demand letter — this time addressed to the former — be drafted by respondent, who reluctantly agreed to do so. Without informing the lawyer, complainant asked the process server of the former's law office to deliver the letter to the addressee.

Aside from attending to the Regwill case which had required a three-hour meeting, respondent drafted a complaint (which was only for the purpose of compelling the owner to settle the case) and prepared a compromise agreement. He was also requested by complainant to do the following:

1.Write a demand letter addressed to Mr. Nelson Tan

2.Write a demand letter addressed to ALC Corporation

3.Draft a complaint against ALC Corporation

4.Research on the Mandaue City property claimed by complainant's wife

All of these respondent did, but he was never paid for his services by complainant.

Respondent likewise said that without telling him why, complainant later on withdrew all the files pertinent to the Regwill case. However, when no settlement was reached, the latter instructed him to draft a complaint for breach of contract. Respondent, whose services had never been paid by complainant until this time, told the latter about his acceptance and legal fees. When told that these fees amounted to P187,742 because the Regwill claim was almost P4 million, complainant promised to pay on installment basis.

On January 4, 1999, complainant gave the amount of P25,000 to respondent's secretary and told her that it was for the filing fee of the Regwill case. When informed of the payment, the lawyer immediately called the attention of complainant, informing the latter of the need to pay the acceptance and filing fees before the complaint could be filed. Complainant was told that the amount he had paid was a deposit for the acceptance fee, and that he should give the filing fee later.

Sometime in February 1999, complainant told respondent to suspend for the meantime the filing of the complaint because the former might be paid by another company, the First Oriental Property Ventures, Inc., which had offered to buy a parcel of land owned by Regwill Industries. The negotiations went on for two months, but the parties never arrived at any agreement.

Sometime in May 1999, complainant again relayed to respondent his interest in filing the complaint. Respondent reminded him once more of the acceptance fee. In response, complainant proposed that the complaint be filed first before payment of respondent's acceptance and legal fees. When respondent refused, complainant demanded the return of the P25,000. The lawyer returned the amount using his own personal checks because their law office was undergoing extensive renovation at the time, and their office personnel were not reporting regularly. Respondent's checks were accepted and encashed by complainant.

Respondent averred that he never inconvenienced, mistreated or deceived complainant, and if anyone had been shortchanged by the undesirable events, it was he.

The IBP's Recommendation

In its Report and Recommendation dated March 8, 2000, the Commission on Bar Discipline of the Integrated Bar of the Philippines (IBP) opined as follows:

". . . [I]t is evident that the P25,000 deposited by complainant with the Respicio Law Office was for the filing fees of the Regwill complaint. With complainant's deposit of the filing fees for the Regwill complaint, a corresponding obligation on the part of respondent was created and that was to file the Regwill complaint within the time frame contemplated by his client, the complainant. The failure of respondent to fulfill this obligation due to his misuse of the filing fees deposited by complainant, and his attempts to cover up this misuse of funds of the client, which caused complainant additional damage and prejudice, constitutes highly dishonest conduct on his part, unbecoming a member of the law profession: The subsequent reimbursement by the respondent of part of the money deposited by complainant for filing fees, does not exculpate the respondent for his misappropriation of said funds. Thus, to impress upon the respondent the gravity of his offense, it is recommended that respondent be suspended from the practice of law for a period of one (1) year." 4

The Court's Ruling

We agree with the Commission's recommendation.

Main Issue:

Misappropriation of Client's Funds

Central to this case are the following alleged acts of respondent lawyer: (a) his non-filing of the Complaint on behalf of his client and (b) his appropriation for himself of the money given for the filing fee.

Respondent claims that complainant did not give him the filing fee for the Regwill complaint; hence, the former's failure to file the complaint in court. Also, respondent alleges that the amount delivered by complainant to his office on January 4, 1999 was for attorney's fees and not for the filing fee.

We are not persuaded. Lawyers must exert their best efforts and ability in the prosecution or the defense of the client's cause. They who perform that duty with diligence and candor not only protect the interests of the client, but also serve the ends of justice. They do honor to the bar and help maintain the respect of the community for the legal profession. 5 Members of the bar must do nothing that may tend to lessen in any degree the confidence of the public in the fidelity, the honesty, and integrity of the profession. 6

Respondent wants this Court to believe that no lawyer-client relationship existed between him and complainant, because the latter never paid him for services rendered. The former adds that he only drafted the said documents as a personal favor for the kumpadre of one of his partners.

We disagree. A lawyer-client relationship was established from the very first moment complainant asked respondent for legal advice regarding the former's business. To constitute professional employment, it is not essential that the client employed the attorney professionally on any previous occasion. It is not necessary that any retainer be paid, promised, or charged; neither is it material that the attorney consulted did not afterward handle the case for which his service had been sought.

If a person, in respect to business affairs or troubles of any kind, consults a lawyer with a view to obtaining professional advice or assistance, and the attorney voluntarily permits or acquiesces with the consultation, then the professional employment is established. 7

Likewise, a lawyer-client relationship exists notwithstanding the close personal relationship between the lawyer and the complainant or the nonpayment of the former's fees. 8 Hence, despite the fact that complainant was kumpadre of a law partner of respondent, and that respondent dispensed legal advice to complainant as a personal favor to the kumpadre, the lawyer was duty-bound to file the complaint he had agreed to prepare — and had actually prepared — at the soonest possible time, in order to protect the client's interest. Rule 18.03 of the Code of Professional Responsibility provides that lawyers should not neglect legal matters entrusted to them.

This Court has likewise constantly held that once lawyers agree to take up the cause of a client, they owe fidelity to such cause and must always be mindful of the trust and confidence reposed in them. 9 They owe entire devotion to the interest of the client, warm zeal in the maintenance and the defense of the client's rights, and the exertion of their utmost learning and abilities to the end that nothing be taken or withheld from the client, save by the rules of law legally applied. 10

Similarly unconvincing is the explanation of respondent that the receipt issued by his office to complainant on January 4, 1999 was erroneous. The IBP Report correctly noted that it was quite incredible for the office personnel of a law firm to be prevailed upon by a client to issue a receipt erroneously indicating payment for something else. Moreover, upon discovering the "mistake" — if indeed it was one — respondent should have immediately taken steps to correct the error. He should have lost no time in calling complainant's attention to the matter and should have issued another receipt indicating the correct purpose of the payment.

The Practice of Law — aProfession, Not a Business

In this day and age, members of the bar often forget that the practice of law is a profession and not a business. 11 Lawyering is not primarily meant to be a money-making venture, and law advocacy is not a capital that necessarily yields profits. 12 The gaining of a livelihood is not a professional but a secondary consideration. 13 Duty to public service and to the administration of justice should be the primary consideration of lawyers, who must subordinate their personal interests or what they owe to themselves.

The practice of law is a noble calling in which emolument is a byproduct, and the highest eminence may be attained without making much money. 14

In failing to apply to the filing fee the amount given by complainant — as evidenced by the receipt issued by the law office of respondent — the latter also violated the rule that lawyers must be scrupulously careful in handling money entrusted to them in their professional capacity. 15 Rule 16.01 of the Code of Professional Responsibility states that lawyers shall hold in trust all moneys of their clients and properties that may come into their possession.

Lawyers who convert the funds entrusted to them are in gross violation of professional ethics and are guilty of betrayal of public confidence in the legal profession. 16 It may be true that they have a lien upon the client's funds, documents and other papers that have lawfully come into their possession; that they may retain them until their lawful fees and disbursements have been paid; and that they may apply such funds to the satisfaction of such fees and disbursements. However, these considerations do not relieve them of their duty to promptly account for the moneys they received. Their failure to do so constitutes professional misconduct. 17 In any event, they must still exert all effort to protect their client's interest within the bounds of law.

If much is demanded from an attorney, it is because the entrusted privilege to practice law carries with it correlative duties not only to the client but also to the court, to the bar, and to the public. 18 Respondent fell short of this standard when he converted into his legal fees the filing fee entrusted to him by his client and thus failed to file the complaint promptly. The fact that the former returned the amount does not exculpate him from his breach of duty.

On the other hand, we do not agree with complainant's plea to disbar respondent from the practice of law. The power to disbar must be exercised with great caution. Only in a clear case of misconduct that seriously affects the standing and the character of the bar will disbarment be imposed as a penalty. 19

WHEREFORE, Atty. Alberto C. Magulta is found guilty of violating Rules 16.01 and 18.03 of the Code of Professional Responsibility and is hereby SUSPENDED from the practice of law for a period of one (1) year, effective upon his receipt of this Decision. Let copies be furnished all courts as well as the Office of the Bar Confidant, which is instructed to include a copy in respondent's file.

8. COJUANCO VS PALMA

Providing one's children with a comfortable life and good education does not render marriage a fait accompli. Leo J. Palma, respondent herein, may have provided well for his children but this accomplishment is not sufficient to wipe away the penalty for his transgression. He ought to remember that before he became a father, he was a husband first. As such, he should have loved, respected and remained faithful to his wife.

At bar is respondent's Motion to Vacate 1 our Decision dated September 15, 2004 finding him guilty of grossly immoral conduct and violation of his oath as a lawyer and imposing upon him the penalty of disbarment from the practice of law.

In resolving the instant motion, a brief revisit of the facts is imperative. On June 22, 1982, respondent, despite his subsisting marriage with Elizabeth Hermosisima, married Maria Luisa Cojuangco, the 22-year old daughter of complainant Eduardo M. Cojuangco, Jr. This prompted the latter to file with this Court, on November 8, 1982, a complaint for disbarment against respondent.

Respondent moved to dismiss the complaint.

In our Resolution 2 dated March 2, 1983, we referred the case to the Office of the Solicitor General (OSG) for investigation, report and recommendation. Then Assistant Solicitor General Oswaldo D. Agcaoili heard the testimonies of the complainant and his witness in the presence of respondent's counsel.

On March 19, 1984, respondent filed with the OSG an urgent motion to suspend proceedings 3 on the ground that the final outcome of Civil Case No. Pq-0401-P, 4 for declaration of nullity of marriage between him and his wife Lisa, poses a prejudicial question to the disbarment proceeding. The motion was denied.

Respondent then filed with this Court an urgent motion for issuance of a restraining order. 5 On December 19, 1984, we issued a Resolution enjoining the OSG from continuing the disbarment proceedings. 6

In the interim, Rule 139-B of the Rules of Court took effect. Hence, the OSG transferred the disbarment case to the Integrated Bar of the Philippines (IBP). On October 19, 1998, IBP Commissioner Julio C. Elamparo required the parties to manifest within ten (10) days from notice whether they are still interested in pursuing the case. 7

In his manifestation, 8 complainant confirmed his continuing interest in prosecuting the case.

For his part, respondent moved to postpone the hearing eight (8) times. In one of those instances, particularly on August 28, 2001, complainant moved "that respondent be deemed to have waived his right to present evidence and for the case to be deemed submitted for resolution in view of his continuing failure to present his evidence." However, complainant withdrew such motion upon the promise of the respondent's counsel that on the next hearing, scheduled on October 4, 2001, he would definitely present his client's evidence. But even before that date, respondent already manifested that he would not be able to return to the Philippines for his direct testimony. Instead, he promised to submit his "direct testimony in affidavit form". 9 In an Order issued that day, the IBP Commissioner reset the hearing for the last time on January 24, 2002 and warned respondent that should he fail to appear or present his "direct testimony in affidavit form," the case will be deemed submitted for resolution. 10 On January 24, 2002, respondent neither appeared nor presented his "direct testimony in affidavit form," hence, the case was deemed submitted for resolution. 11

On March 20, 2003, the IBP Commissioner submitted a Report and Recommendation finding respondent guilty of gross immoral conduct and violation of his oath as a lawyer and recommending that he be suspended from the practice of law for a period of three (3) years. cHTCaI

The IBP Board of Governors adopted and approved the above Report and Recommendation, but reduced the penalty of suspension to only one (1) year.

On September 15, 2004, we rendered the assailed Decision.

In his motion for reconsideration, respondent raised the following issues:

First, the complaint for disbarment was filed by an improper party, complainant not being the offended party.

Second, he was denied due process because the case was submitted for resolution on January 24, 2002 without his "direct testimony in affidavit form."

Third, the disbarment proceedings before the IBP Commission on Bar Discipline is void because our Resolution dated December 19, 1984 restraining the OSG from continuing such proceedings has not been lifted.

Fourth, our Decision is barred by laches because of the lapse of almost fourteen (14) years from December 19, 1984, the date we restrained the OSG from continuing the disbarment proceedings, until

October 19, 1998, the date the IBP Commissioner required the parties to "manifest whether or not they are still interested in prosecuting the case."

Fifth, the Resolution dated June 21, 2003 of the IBP Board of Governors imposing upon him the penalty of one (1) year suspension "has attained finality and should be deemed served already."

And sixth, he acted under a "firm factual and legal conviction" in declaring before the Hong Kong Marriage Registry that he is a "bachelor" because his first marriage is void even if there is no judicial declaration of nullity. IaDcTC

In his comment, complainant countered that: first, respondent cannot claim denial of due process because his failure to adduce evidence was due to his own fault; second, it is now too late to invoke this Court's Resolution of December 19, 1984 restraining the OSG from continuing the disbarment proceedings; third, laches does not apply because the 14-year hiatus was brought about by the said Resolution; fourth, the penalty of one-year suspension imposed by the IBP Board of Governors cannot be deemed "final and served already" because it is a mere recommendation to this Court; and fifth, although his previous marriage was annulled, it can not erase the betrayal of trust and abuse of confidence he committed against complainant.

Respondent's motion is bereft of merit.

We observe that in his motion, respondent alleged new issues 12 which were not considered below. Nonetheless, in view of the caveat that the power to disbar must be exercised with great caution, we shall resolve all these new issues.

I

Improper Party

We find no merit in respondent's contention that the complainant, being the father of the offended party, does not have the standing to file the instant complaint.

Disbarment proceedings are undertaken solely for public welfare. The only question for determination is whether respondent is fit to be a member of the Bar. The complainant or the person who called the attention of this Court to the lawyer's alleged misconduct is in no sense a party and generally has no interest in the outcome except as all good citizens may have in the proper administration of justice. 13 Thus, this Court may investigate charges against lawyers, regardless of complainant's standing. In fact, it can do so motu proprio. Our ruling in Rayos-Ombac vs. Rayos 14 applies four-square, thus:

". . . 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 attorney's alleged misconduct is in no sense a party, and has generally no interest in the outcome except as all good citizens may have in the proper administration of justice. Hence, if the evidence on record warrants, the respondent may be suspended or disbarred despite the desistance of complainant or his withdrawal of the charges."

II

Due Process

Neither do we find merit in respondent's claim that the IBP Commission on Bar Discipline violated his right to due process when it considered the case submitted for resolution on January 24, 2002 without his "direct testimony in affidavit form." The records show that the case dragged on for three (3) years after the IBP Commission on Bar Discipline resumed its investigation on October 19, 1998. Of the fifteen 15 (15) settings from February 2, 1999 to January 24, 2002, respondent had the hearing postponed for eight (8) times.

Indisputably, it was respondent's failure to submit his "direct testimony in affidavit form" that caused delay. Since the proceedings had been dragging on a lethargic course, the IBP Commissioner is correct in considering the case submitted for resolution. At this juncture, it must be stressed that the essence of due process in administrative proceedings is the opportunity to explain one's side or seek a reconsideration of the action or ruling complained of. As long as the parties are given the opportunity to be heard before judgment is rendered, the demands of due process are sufficiently met. 16 Here, respondent was given sufficient opportunity to explain his side and adduce his evidence. Despite his sudden "flight into oblivion," the IBP Commissioner notified him of the proceedings. Significantly, he was duly represented by a counsel who attended the hearings and submitted manifestations and motions on his behalf, the latest of which is the instant Motion to Vacate. In short, the active participation of his lawyer in every stage of the proceedings rules out any badge of procedural deficiency therein. Of course, we need not mention the fact that respondent was able to file with this Court a motion to dismiss the complaint, as well as to confront and cross-examine the complainant and his witness during the investigation in the OSG.

III

Restraining Order

The restraining order was anchored on the ground that the final outcome of Civil Case No. Pq-0401-P poses a prejudicial question to the disbarment proceedings. It appears from complainant's allegation, which respondent does not deny, that Civil Case No. Pq-0401-P was dismissed without prejudice. 17 Necessarily, there is no more prejudicial question to speak of. THIcCA

IV

Laches

Respondent cannot find solace in the principle of laches. While it is true that there was a hiatus or delay of 14 years before the IBP Commissioner resumed the investigation, the same was pursuant to the said restraining order of December 19, 1984.

V

Finality of the Penalty Imposedby the IBP-Board of Governors

The penalty of one-year suspension imposed by the IBP Board of Governors cannot attain finality. Section 12 of Rule 139-B provides:

"Section 12.Review and Decision by the Board of Governors. —

xxx xxx xxx

(b)If the Board, by the vote of a majority of its total membership, determines that the respondent should be suspended from the practice of law or disbarred, it shall issue a resolution setting forth its findings and

recommendations which, together with the whole record of the case shall forthwith be transmitted to the Supreme Court for final action."

Clearly, the resolution of the IBP Board of Governors is merely recommendatory. The "power to recommend" includes the power to give "advice, exhortation or indorsement, which is essentially persuasive in character, not binding upon the party to whom it is made." 18 Necessarily, the "final action" on the resolution of the IBP Board of Governors still lies with this Court. Obviously, respondents argument that we affirmed such resolution when we "noted" it is certainly misplaced. In Re: Problem of Delays in Cases Before the Sandiganbayan, 19 we held that the term "noted" means that the Court has merely taken cognizance of the existence of an act or declaration, without exercising a judicious deliberation or rendering a decision on the matter. It does not imply agreement or approval. The power to disbar belongs to the Court alone.

VI

Good Faith

Respondent's argument that he was of the "firm factual and legal conviction when he declared before the Hong Kong authorities that he was a bachelor since his first marriage is void and does not need judicial declaration of nullity" cannot exonerate him. In Terre vs. Terre, 20 the same defense was raised by respondent lawyer whose disbarment was also sought. We held:

". . . Respondent Jordan Terre, being a lawyer, knew or should have known that such an argument ran counter to the prevailing case law of this Court which holds that for purposes of determining whether a person is legally free to contract a second marriage, a judicial declaration that the first marriage was null and void ab initio is essential. Even if we Were to assume, arguendo merely, that Jordan Terre held that mistaken belief in good faith, the same result will follow. For if we are to hold Jordan Terre to his own argument, his first marriage to complainant Dorothy Terre must be deemed valid, with the result that his second marriage must be regarded as bigamous and criminal in character."

Before we write finis to this case, we find it necessary to stress certain points in view of respondent's additional reason why he should be exonerated — that he loves all his children and has always provided for them. He may have indeed provided well for his children. But this accomplishment is not sufficient to show his moral fitness to continue being a member of the noble profession of law. It has always been the duties of parents — e.g., to support, educate and instruct their children according to right precepts and good example; and to give them love, companionship and understanding, as well as moral and spiritual guidance. 21 But what respondent forgot is that he has also duties to his wife. As a husband, he is obliged to live with her; observe mutual love, respect and fidelity; and render help and support. 22 And most important of all, he is obliged to remain faithful to her until death. AaEcHC

The undeniable truth is that respondent married Lisa while his marriage with Elizabeth Hermosisima was still subsisting. Such act constitutes grossly immoral conduct, a ground for disbarment under Section 27, Rule 138 of the Revised Rules of Court. Obviously, he exhibited a deplorable lack of that degree of morality required of him as a member of the Bar. He made a mockery of marriage, a sacred institution demanding respect and dignity. In Cordova vs. Cordova, 23 we held that "The moral delinquency that affects the fitness of a member of the bar to continue as such includes conduct that outrages the generally accepted moral standards of the community, conduct for instance, which makes a mockery of the inviolable social institution of marriage."

We also reiterate our ruling that respondent's conduct speaks of a clear case of betrayal of trust and abuse of confidence, thus:

". . . It was respondent's closeness to the complainant's family as well as the latter's complete trust in him that made possible his intimate relationship with Lisa. When his concern was supposed to be complainant's legal affairs only, he sneaked at the latter's back and courted his daughter. Like the proverbial thief in the night, he attacked when nobody was looking. Moreover, he availed of complainant's

resources by securing a plane ticket from complainant's office in order to marry the latter's daughter in Hong Kong. He did this without complainant's knowledge. Afterwards, he even had the temerity to assure complainant that "everything is legal." Clearly, respondent had crossed the limits of propriety and decency.

Indeed, we are not prepared to exonerate respondent or reduce the penalty we imposed on him as it will denigrate the standard of the law profession.

WHEREFORE, respondent's Motion to Vacate our Decision dated September 15, 2004 is hereby DENIED.