RENATO CAYETANO, petitioner,

vs.
CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION ON APPOINTMENT, and HON.
GUILLERMO CARAGUE, in his capacity as Secretary of Budget and Management
We now proceed:
The Commission on the basis of evidence submitted doling the public hearings on Monsod's confirmation,
implicitly determined that he possessed the necessary qualifications as required by law. The judgment
rendered by the Commission in the exercise of such an acknowledged power is beyond judicial
interference except only upon a clear showing of a grave abuse of discretion amounting to lack or excess
of jurisdiction. (Art. VIII, Sec. 1 Constitution). Thus, only where such grave abuse of discretion is clearly
shown shall the Court interfere with the Commission's judgment. In the instant case, there is no occasion
for the exercise of the Court's corrective power, since no abuse, much less a grave abuse of discretion, that
would amount to lack or excess of jurisdiction and would warrant the issuance of the writs prayed, for has
been clearly shown.
Additionally, consider the following:
(1) If the Commission on Appointments rejects a nominee by the President, may the
Supreme Court reverse the Commission, and thus in effect confirm the appointment?
Clearly, the answer is in the negative.
(2) In the same vein, may the Court reject the nominee, whom the Commission
has confirmed? The answer is likewise clear.
(3) If the United States Senate (which is the confirming body in the U.S. Congress) decides
to confirm a Presidential nominee, it would be incredible that the U.S. Supreme Court would
still reverse the U.S. Senate.
Finally, one significant legal maxim is:
We must interpret not by the letter that killeth, but by the spirit that giveth life.
Take this hypothetical case of Samson and Delilah. Once, the procurator of Judea asked Delilah (who was
Samson's beloved) for help in capturing Samson. Delilah agreed on condition that
No blade shall touch his skin;
No blood shall flow from his veins.
When Samson (his long hair cut by Delilah) was captured, the procurator placed an iron rod burning white-
hot two or three inches away from in front of Samson's eyes. This blinded the man. Upon hearing of what
had happened to her beloved, Delilah was beside herself with anger, and fuming with righteous fury,
accused the procurator of reneging on his word. The procurator calmly replied: "Did any blade touch his
skin? Did any blood flow from his veins?" The procurator was clearly relying on the letter, not the spirit of
the agreement.
In view of the foregoing, this petition is hereby DISMISSED.
SO ORDERED.
Fernan, C.J., Grio-Aquino and Medialdea, JJ., concur.
Feliciano, J., I certify that he voted to dismiss the petition. (Fernan, C.J.)
Sarmiento, J., is on leave.
Regalado, and Davide, Jr., J., took no part.
Separate Opinions

NARVASA, J., concurring:

I concur with the decision of the majority written by Mr. Justice Paras, albeit only in the result; it does not
appear to me that there has been an adequate showing that the challenged determination by the
Commission on Appointments-that the appointment of respondent Monsod as Chairman of the Commission
on Elections should, on the basis of his stated qualifications and after due assessment thereof, be
confirmed-was attended by error so gross as to amount to grave abuse of discretion and consequently
merits nullification by this Court in accordance with the second paragraph of Section 1, Article VIII of the
Constitution. I therefore vote to DENY the petition.

PADILLA, J., dissenting:

The records of this case will show that when the Court first deliberated on the Petition at bar, I voted not
only to require the respondents to comment on the Petition, but I was the sole vote for the issuance of a
temporary restraining order to enjoin respondent Monsod from assuming the position of COMELEC
Chairman, while the Court deliberated on his constitutional qualification for the office. My purpose in voting
for a TRO was to prevent the inconvenience and even embarrassment to all parties concerned were the
Court to finally decide for respondent Monsod's disqualification. Moreover, a reading of the Petition then in
relation to established jurisprudence already showed prima facie that respondent Monsod did not possess
the needed qualification, that is, he had not engaged in the practice of law for at least ten (10) years prior to
his appointment as COMELEC Chairman.
After considering carefully respondent Monsod's comment, I am even more convinced that the
constitutional requirement of "practice of law for at least ten (10) years" has not been met.
The procedural barriers interposed by respondents deserve scant consideration because, ultimately, the
core issue to be resolved in this petition is the proper construal of the constitutional provision requiring a
majority of the membership of COMELEC, including the Chairman thereof to "have been engaged in the
practice of law for at least ten (10) years." (Art. IX(C), Section 1(1), 1987 Constitution). Questions involving
the construction of constitutional provisions are best left to judicial resolution. As declared in Angara v.
Electoral Commission, (63 Phil. 139) "upon the judicial department is thrown the solemn and inescapable
obligation of interpreting the Constitution and defining constitutional boundaries."
The Constitution has imposed clear and specific standards for a COMELEC Chairman. Among these are
that he must have been "engaged in the practice of law for at least ten (10) years." It is the bounden duty of
this Court to ensure that such standard is met and complied with.
What constitutes practice of law? As commonly understood, "practice" refers to the actual performance or
application of knowledge as distinguished from mere possession of knowledge; it connotes
an active, habitual, repeated or customary action. 1 To "practice" law, or any profession for that matter, means,
to exercise or pursue an employment or profession actively, habitually, repeatedly or customarily.
Therefore, a doctor of medicine who is employed and is habitually performing the tasks of a nursing aide,
cannot be said to be in the "practice of medicine." A certified public accountant who works as a clerk,
cannot be said to practice his profession as an accountant. In the same way, a lawyer who is employed as
a business executive or a corporate manager, other than as head or attorney of a Legal Department of a
corporation or a governmental agency, cannot be said to be in the practice of law.
As aptly held by this Court in the case of People vs. Villanueva: 2
Practice is more than an isolated appearance for it consists in frequent or customary
actions, a succession of acts of the same kind. In other words, it is frequent habitual
exercise (State vs- Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of law to fall
within the prohibition of statute has been interpreted as customarily or habitually holding
one's self out to the public as a lawyer and demanding payment for such services (State vs.
Bryan, 4 S.E. 522, 98 N.C. 644,647.) ... (emphasis supplied).
It is worth mentioning that the respondent Commission on Appointments in a Memorandum it prepared,
enumerated several factors determinative of whether a particular activity constitutes "practice of law." It
states:
1. Habituality. The term "practice of law" implies customarily or habitually holding one's self
out to the public as a lawyer (People vs. Villanueva, 14 SCRA 109 citing State v. Boyen, 4
S.E. 522, 98 N.C. 644) such as when one sends a circular announcing the establishment of
a law office for the general practice of law (U.S. v. Ney Bosque, 8 Phil. 146), or when one
takes the oath of office as a lawyer before a notary public, and files a manifestation with the
Supreme Court informing it of his intention to practice law in all courts in the country (People
v. De Luna, 102 Phil. 968).
Practice is more than an isolated appearance for it consists in frequent or customary action,
a succession of acts of the same kind. In other words, it is a habitual exercise (People v.
Villanueva, 14 SCRA 109 citing State v. Cotner, 127, p. 1, 87 Kan, 864).
2. Compensation. Practice of law implies that one must have presented himself to be in the
active and continued practice of the legal profession and that his professional services are
available to the public for compensation, as a service of his livelihood or in consideration of
his said services. (People v. Villanueva, supra). Hence, charging for services such as
preparation of documents involving the use of legal knowledge and skill is within the term
"practice of law" (Ernani Pao, Bar Reviewer in Legal and Judicial Ethics, 1988 ed., p. 8
citing People v. People's Stockyards State Bank, 176 N.B. 901) and, one who renders an
opinion as to the proper interpretation of a statute, and receives pay for it, is to that extent,
practicing law (Martin, supra, p. 806 citing Mendelaun v. Gilbert and Barket Mfg. Co., 290
N.Y.S. 462) If compensation is expected, all advice to clients and all action taken for them in
matters connected with the law; are practicing law. (Elwood Fitchette et al., v. Arthur C.
Taylor, 94A-L.R. 356-359)
3. Application of law legal principle practice or procedure which calls for legal knowledge,
training and experience is within the term "practice of law". (Martin supra)
4. Attorney-client relationship. Engaging in the practice of law presupposes the existence of
lawyer-client relationship. Hence, where a lawyer undertakes an activity which requires
knowledge of law but involves no attorney-client relationship, such as teaching law or
writing law books or articles, he cannot be said to be engaged in the practice of his
profession or a lawyer (Agpalo, Legal Ethics, 1989 ed., p. 30). 3
The above-enumerated factors would, I believe, be useful aids in determining whether or not respondent
Monsod meets the constitutional qualification of practice of law for at least ten (10) years at the time of his
appointment as COMELEC Chairman.
The following relevant questions may be asked:
1. Did respondent Monsod perform any of the tasks which are peculiar to the practice of law?
2. Did respondent perform such tasks customarily or habitually?
3. Assuming that he performed any of such tasks habitually, did he do so HABITUALLY FOR AT LEAST
TEN (10) YEARS prior to his appointment as COMELEC Chairman?
Given the employment or job history of respondent Monsod as appears from the records, I am persuaded
that if ever he did perform any of the tasks which constitute the practice of law, he did not do so
HABITUALLY for at least ten (10) years prior to his appointment as COMELEC Chairman.
While it may be granted that he performed tasks and activities which could be latitudinarianly considered
activities peculiar to the practice of law, like the drafting of legal documents and the rendering of legal
opinion or advice, such were isolated transactions or activities which do not qualify his past endeavors as
"practice of law." To become engaged in the practice of law, there must be a continuity, or a succession of
acts. As observed by the Solicitor General in People vs. Villanueva: 4
 Essentially, the word private practice of law implies that one must have presented himself to
be in the active and continued practice of the legal profession and that his professional
services are available to the public for a compensation, as a source of his livelihood or in
consideration of his said services.
ACCORDINGLY, my vote is to GRANT the petition and to declare respondent Monsod as not qualified for
the position of COMELEC Chairman for not having engaged in the practice of law for at least ten (10) years
prior to his appointment to such position.
CRUZ, J., dissenting:
I am sincerely impressed by the ponencia of my brother Paras but find I must dissent just the same. There
are certain points on which I must differ with him while of course respecting hisviewpoint.
To begin with, I do not think we are inhibited from examining the qualifications of the respondent simply
because his nomination has been confirmed by the Commission on Appointments. In my view, this is not a
political question that we are barred from resolving. Determination of the appointee's credentials is made
on the basis of the established facts, not the discretion of that body. Even if it were, the exercise of that
discretion would still be subject to our review.
In Luego, which is cited in the ponencia, what was involved was the discretion of the appointing authority
to choose between two claimants to the same office who both possessed the required qualifications. It was
that kind of discretion that we said could not be reviewed.
If a person elected by no less than the sovereign people may be ousted by this Court for lack of the
required qualifications, I see no reason why we cannot disqualified an appointee simply because he has
passed the Commission on Appointments.
Even the President of the Philippines may be declared ineligible by this Court in an appropriate proceeding
notwithstanding that he has been found acceptable by no less than the enfranchised citizenry. The reason
is that what we would be examining is not the wisdom of his election but whether or not he was qualified to
be elected in the first place.
Coming now to the qualifications of the private respondent, I fear that the ponencia may have been too
sweeping in its definition of the phrase "practice of law" as to render the qualification practically toothless.
From the numerous activities accepted as embraced in the term, I have the uncomfortable feeling that one
does not even have to be a lawyer to be engaged in the practice of law as long as his activities involve the
application of some law, however peripherally. The stock broker and the insurance adjuster and the realtor
could come under the definition as they deal with or give advice on matters that are likely "to become
involved in litigation."
The lawyer is considered engaged in the practice of law even if his main occupation is another business
and he interprets and applies some law only as an incident of such business. That covers every company
organized under the Corporation Code and regulated by the SEC under P.D. 902-A. Considering the
ramifications of the modern society, there is hardly any activity that is not affected by some law or
government regulation the businessman must know about and observe. In fact, again going by the
definition, a lawyer does not even have to be part of a business concern to be considered a practitioner. He
can be so deemed when, on his own, he rents a house or buys a car or consults a doctor as these acts
involve his knowledge and application of the laws regulating such transactions. If he operates a public utility
vehicle as his main source of livelihood, he would still be deemed engaged in the practice of law because
he must obey the Public Service Act and the rules and regulations of the Energy Regulatory Board.
The ponencia quotes an American decision defining the practice of law as the "performance of any acts ...
in or out of court, commonly understood to be the practice of law," which tells us absolutely nothing. The
decision goes on to say that "because lawyers perform almost every function known in the commercial and
governmental realm, such a definition would obviously be too global to be workable."
The effect of the definition given in the ponencia is to consider virtually every lawyer to be engaged in the
practice of law even if he does not earn his living, or at least part of it, as a lawyer. It is enough that his
activities are incidentally (even if only remotely) connected with some law, ordinance, or regulation. The
possible exception is the lawyer whose income is derived from teaching ballroom dancing or escorting
wrinkled ladies with pubescent pretensions.
The respondent's credentials are impressive, to be sure, but they do not persuade me that he has been
engaged in the practice of law for ten years as required by the Constitution. It is conceded that he has been
engaged in business and finance, in which areas he has distinguished himself, but as an executive and
economist and not as a practicing lawyer. The plain fact is that he has occupied the various positions listed
in his resume by virtue of his experience and prestige as a businessman and not as an attorney-at-law
whose principal attention is focused on the law. Even if it be argued that he was acting as a lawyer when he
lobbied in Congress for agrarian and urban reform, served in the NAMFREL and the Constitutional
Commission (together with non-lawyers like farmers and priests) and was a member of the Davide
Commission, he has not proved that his activities in these capacities extended over the prescribed 10-year
period of actual practice of the law. He is doubtless eminently qualified for many other positions worthy of
his abundant talents but not as Chairman of the Commission on Elections.
I have much admiration for respondent Monsod, no less than for Mr. Justice Paras, but I must regretfully
vote to grant the petition.
GUTIERREZ, JR., J., dissenting:
When this petition was filed, there was hope that engaging in the practice of law as a qualification for public
office would be settled one way or another in fairly definitive terms. Unfortunately, this was not the result.
Of the fourteen (14) member Court, 5 are of the view that Mr. Christian Monsod engaged in the practice of
law (with one of these 5 leaving his vote behind while on official leave but not expressing his clear stand on
the matter); 4 categorically stating that he did not practice law; 2 voting in the result because there was no
error so gross as to amount to grave abuse of discretion; one of official leave with no instructions left
behind on how he viewed the issue; and 2 not taking part in the deliberations and the decision.
There are two key factors that make our task difficult. First is our reviewing the work of a constitutional
Commission on Appointments whose duty is precisely to look into the qualifications of persons appointed to
high office. Even if the Commission errs, we have no power to set aside error. We can look only into grave
abuse of discretion or whimsically and arbitrariness. Second is our belief that Mr. Monsod possesses
superior qualifications in terms of executive ability, proficiency in management, educational background,
experience in international banking and finance, and instant recognition by the public. His integrity and
competence are not questioned by the petitioner. What is before us is compliance with a specific
requirement written into the Constitution.
Inspite of my high regard for Mr. Monsod, I cannot shirk my constitutional duty. He has never engaged in
the practice of law for even one year. He is a member of the bar but to say that he has practiced law is
stretching the term beyond rational limits.
A person may have passed the bar examinations. But if he has not dedicated his life to the law, if he has
not engaged in an activity where membership in the bar is a requirement I fail to see how he can claim to
have been engaged in the practice of law.
Engaging in the practice of law is a qualification not only for COMELEC chairman but also for appointment
to the Supreme Court and all lower courts. What kind of Judges or Justices will we have if there main
occupation is selling real estate, managing a business corporation, serving in fact-finding committee,
working in media, or operating a farm with no active involvement in the law, whether in Government or
private practice, except that in one joyful moment in the distant past, they happened to pass the bar
examinations?
The Constitution uses the phrase "engaged in the practice of law for at least ten years." The deliberate
choice of words shows that the practice envisioned is active and regular, not isolated, occasional,
accidental, intermittent, incidental, seasonal, or extemporaneous. To be "engaged" in an activity for ten
years requires committed participation in something which is the result of one's decisive choice. It means
that one is occupied and involved in the enterprise; one is obliged or pledged to carry it out with intent and
attention during the ten-year period.
I agree with the petitioner that based on the bio-data submitted by respondent Monsod to the Commission
on Appointments, the latter has not been engaged in the practice of law for at least ten years. In fact, if
appears that Mr. Monsod has never practiced law except for an alleged one year period after passing the
bar examinations when he worked in his father's law firm. Even then his law practice must have been
extremely limited because he was also working for M.A. and Ph. D. degrees in Economics at the University
of Pennsylvania during that period. How could he practice law in the United States while not a member of
the Bar there?
The professional life of the respondent follows:
1.15.1. Respondent Monsod's activities since his passing the Bar examinations in 1961
consist of the following:
1. 1961-1963: M.A. in Economics (Ph. D. candidate), University of Pennsylvania
2. 1963-1970: World Bank Group Economist, Industry Department; Operations, Latin
American Department; Division Chief, South Asia and Middle East, International Finance
Corporation
3. 1970-1973: Meralco Group Executive of various companies, i.e., Meralco Securities
Corporation, Philippine Petroleum Corporation, Philippine Electric Corporation
4. 1973-1976: Yujuico Group President, Fil-Capital Development Corporation and
affiliated companies
5. 1976-1978: Finaciera Manila Chief Executive Officer
6. 1978-1986: Guevent Group of Companies Chief Executive Officer
7. 1986-1987: Philippine Constitutional Commission Member
8. 1989-1991: The Fact-Finding Commission on the December 1989 Coup Attempt
Member
9. Presently: Chairman of the Board and Chief Executive Officer of the following companies:
a. ACE Container Philippines, Inc.
b. Dataprep, Philippines
c. Philippine SUNsystems Products, Inc.
d. Semirara Coal Corporation
e. CBL Timber Corporation
Member of the Board of the Following:
a. Engineering Construction Corporation of the Philippines
b. First Philippine Energy Corporation
c. First Philippine Holdings Corporation
d. First Philippine Industrial Corporation
e. Graphic Atelier
f. Manila Electric Company
g. Philippine Commercial Capital, Inc.
h. Philippine Electric Corporation
i. Tarlac Reforestation and Environment Enterprises
j. Tolong Aquaculture Corporation
k. Visayan Aquaculture Corporation
 l. Guimaras Aquaculture Corporation (Rollo, pp. 21-22)
There is nothing in the above bio-data which even remotely indicates that respondent Monsod has
given the law enough attention or a certain degree of commitment and participation as would support in all
sincerity and candor the claim of having engaged in its practice for at least ten years. Instead of working as
a lawyer, he has lawyers working for him. Instead of giving receiving that legal advice of legal services, he
was the oneadvice and those services as an executive but not as a lawyer.
The deliberations before the Commission on Appointments show an effort to equate "engaged in the
practice of law" with the use of legal knowledge in various fields of endeavor such as commerce, industry,
civic work, blue ribbon investigations, agrarian reform, etc. where such knowledge would be helpful.
I regret that I cannot join in playing fast and loose with a term, which even an ordinary layman accepts as
having a familiar and customary well-defined meaning. Every resident of this country who has reached the
age of discernment has to know, follow, or apply the law at various times in his life. Legal knowledge is
useful if not necessary for the business executive, legislator, mayor, barangay captain, teacher, policeman,
farmer, fisherman, market vendor, and student to name only a few. And yet, can these people honestly
assert that as such, they are engaged in the practice of law?
The Constitution requires having been "engaged in the practice of law for at least ten years." It is not
satisfied with having been "a member of the Philippine bar for at least ten years."
Some American courts have defined the practice of law, as follows:
The practice of law involves not only appearance in court in connection with litigation but
also services rendered out of court, and it includes the giving of advice or the rendering of
any services requiring the use of legal skill or knowledge, such as preparing a will, contract
or other instrument, the legal effect of which, under the facts and conditions involved, must
be carefully determined. People ex rel. Chicago Bar Ass'n v. Tinkoff, 399 Ill. 282, 77 N.E.2d
693; People ex rel. Illinois State Bar Ass'n v. People's Stock Yards State Bank, 344 Ill.
462,176 N.E. 901, and cases cited.
It would be difficult, if not impossible to lay down a formula or definition of what constitutes
the practice of law. "Practicing law" has been defined as "Practicing as an attorney or
counselor at law according to the laws and customs of our courts, is the giving of advice or
rendition of any sort of service by any person, firm or corporation when the giving of such
advice or rendition of such service requires the use of any degree of legal knowledge or
skill." Without adopting that definition, we referred to it as being substantially correct
in People ex rel. Illinois State Bar Ass'n v. People's Stock Yards State Bank, 344 Ill. 462,176
N.E. 901. (People v. Schafer, 87 N.E. 2d 773, 776)
For one's actions to come within the purview of practice of law they should not only be activities peculiar to
the work of a lawyer, they should also be performed, habitually, frequently or customarily, to wit:
xxx xxx xxx
Respondent's answers to questions propounded to him were rather evasive. He was asked
whether or not he ever prepared contracts for the parties in real-estate transactions where
he was not the procuring agent. He answered: "Very seldom." In answer to the question as
to how many times he had prepared contracts for the parties during the twenty-one years of
his business, he said: "I have no Idea." When asked if it would be more than half a dozen
times his answer was I suppose. Asked if he did not recall making the statement to several
parties that he had prepared contracts in a large number of instances, he answered: "I don't
recall exactly what was said." When asked if he did not remember saying that he had made
a practice of preparing deeds, mortgages and contracts and charging a fee to the parties
therefor in instances where he was not the broker in the deal, he answered: "Well, I don't
believe so, that is not a practice." Pressed further for an answer as to his practice in
preparing contracts and deeds for parties where he was not the broker, he finally answered:
"I have done about everything that is on the books as far as real estate is concerned."
xxx xxx xxx
 Respondent takes the position that because he is a real-estate broker he has a lawful right
to do any legal work in connection with real-estate transactions, especially in drawing of
real-estate contracts, deeds, mortgages, notes and the like. There is no doubt but that he
has engaged in these practices over the years and has charged for his services in that
connection. ... (People v. Schafer, 87 N.E. 2d 773)
xxx xxx xxx
... An attorney, in the most general sense, is a person designated or employed by another to
act in his stead; an agent; more especially, one of a class of persons authorized to appear
and act for suitors or defendants in legal proceedings. Strictly, these professional persons
are attorneys at law, and non-professional agents are properly styled "attorney's in fact;" but
the single word is much used as meaning an attorney at law. A person may be an attorney
in facto for another, without being an attorney at law. Abb. Law Dict. "Attorney." A public
attorney, or attorney at law, says Webster, is an officer of a court of law, legally qualified to
prosecute and defend actions in such court on the retainer of clients. "The principal duties of
an attorney are (1) to be true to the court and to his client; (2) to manage the business of his
client with care, skill, and integrity; (3) to keep his client informed as to the state of his
business; (4) to keep his secrets confided to him as such. ... His rights are to be justly
compensated for his services." Bouv. Law Dict. tit. "Attorney." The transitive verb "practice,"
as defined by Webster, means 'to do or perform frequently, customarily, or habitually; to
perform by a succession of acts, as, to practice gaming, ... to carry on in practice, or
repeated action; to apply, as a theory, to real life; to exercise, as a profession, trade, art.
etc.; as, to practice law or medicine,' etc...." (State v. Bryan, S.E. 522, 523; Emphasis
supplied)
In this jurisdiction, we have ruled that the practice of law denotes frequency or a succession of acts. Thus,
we stated in the case of People v. Villanueva (14 SCRA 109 [1965]):
xxx xxx xxx
... Practice is more than an isolated appearance, for it consists in frequent or customary actions, a
succession of acts of the same kind. In other words, it is frequent habitual exercise (State v. Cotner, 127, p.
1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of law to fall within the prohibition of statute has been
interpreted as customarily or habitually holding one's self out to the public, as a lawyer and demanding
payment for such services. ... . (at p. 112)
It is to be noted that the Commission on Appointment itself recognizes habituality as a required component
of the meaning of practice of law in a Memorandum prepared and issued by it, to wit:
l. Habituality. The term 'practice of law' implies customarilyor habitually holding one's self
out to the public as a lawyer (People v. Villanueva, 14 SCRA 109 citing State v. Bryan, 4
S.E. 522, 98 N.C. 644) such as when one sends a circular announcing the establishment of
a law office for the general practice of law (U.S. v. Noy Bosque, 8 Phil. 146), or when one
takes the oath of office as a lawyer before a notary public, and files a manifestation with the
Supreme Court informing it of his intention to practice law in all courts in the country (People
v. De Luna, 102 Phil. 968).
Practice is more than an isolated appearance, for it consists in frequent or customary
action, a succession of acts of the same kind. In other words, it is a habitual exercise
(People v. Villanueva, 14 SCRA 1 09 citing State v. Cotner, 1 27, p. 1, 87 Kan, 864)." (Rollo,
p. 115)
xxx xxx xxx
While the career as a businessman of respondent Monsod may have profited from his legal knowledge, the
use of such legal knowledge is incidental and consists of isolated activities which do not fall under the
denomination of practice of law. Admission to the practice of law was not required for membership in the
Constitutional Commission or in the Fact-Finding Commission on the 1989 Coup Attempt. Any specific legal
activities which may have been assigned to Mr. Monsod while a member may be likened to isolated
transactions of foreign corporations in the Philippines which do not categorize the foreign corporations as
doing business in the Philippines. As in the practice of law, doing business also should be active and
continuous. Isolated business transactions or occasional, incidental and casual transactions are not within
the context of doing business. This was our ruling in the case of Antam Consolidated, Inc. v. Court of
appeals, 143 SCRA 288 [1986]).
Respondent Monsod, corporate executive, civic leader, and member of the Constitutional Commission may
possess the background, competence, integrity, and dedication, to qualify for such high offices as
President, Vice-President, Senator, Congressman or Governor but the Constitution in prescribing the
specific qualification of having engaged in the practice of law for at least ten (10) years for the position of
COMELEC Chairman has ordered that he may not be confirmed for that office. The Constitution charges
the public respondents no less than this Court to obey its mandate.
I, therefore, believe that the Commission on Appointments committed grave abuse of discretion in
confirming the nomination of respondent Monsod as Chairman of the COMELEC.
I vote to GRANT the petition.
Bidin, J., dissent

Separate Opinions
NARVASA, J., concurring:
I concur with the decision of the majority written by Mr. Justice Paras, albeit only in the result; it does not
appear to me that there has been an adequate showing that the challenged determination by the
Commission on Appointments-that the appointment of respondent Monsod as Chairman of the Commission
on Elections should, on the basis of his stated qualifications and after due assessment thereof, be
confirmed-was attended by error so gross as to amount to grave abuse of discretion and consequently
merits nullification by this Court in accordance with the second paragraph of Section 1, Article VIII of the
Constitution. I therefore vote to DENY the petition.
Melencio-Herrera, J., concur.
PADILLA, J., dissenting:
The records of this case will show that when the Court first deliberated on the Petition at bar, I voted not
only to require the respondents to comment on the Petition, but I was the sole vote for the issuance of a
temporary restraining order to enjoin respondent Monsod from assuming the position of COMELEC
Chairman, while the Court deliberated on his constitutional qualification for the office. My purpose in voting
for a TRO was to prevent the inconvenience and even embarrassment to all parties concerned were the
Court to finally decide for respondent Monsod's disqualification. Moreover, a reading of the Petition then in
relation to established jurisprudence already showed prima facie that respondent Monsod did not possess
the needed qualification, that is, he had not engaged in the practice of law for at least ten (10) years prior to
his appointment as COMELEC Chairman.
After considering carefully respondent Monsod's comment, I am even more convinced that the
constitutional requirement of "practice of law for at least ten (10) years" has not been met.
The procedural barriers interposed by respondents deserve scant consideration because, ultimately, the
core issue to be resolved in this petition is the proper construal of the constitutional provision requiring a
majority of the membership of COMELEC, including the Chairman thereof to "have been engaged in the
practice of law for at least ten (10) years." (Art. IX(C), Section 1(1), 1987 Constitution). Questions involving
the construction of constitutional provisions are best left to judicial resolution. As declared in Angara v.
Electoral Commission, (63 Phil. 139) "upon the judicial department is thrown the solemn and inescapable
obligation of interpreting the Constitution and defining constitutional boundaries."
The Constitution has imposed clear and specific standards for a COMELEC Chairman. Among these are
that he must have been "engaged in the practice of law for at least ten (10) years." It is the bounden duty of
this Court to ensure that such standard is met and complied with.
What constitutes practice of law? As commonly understood, "practice" refers to the actual performance or
application of knowledge as distinguished from mere possession of knowledge; it connotes
an active, habitual, repeated or customary action. 1 To "practice" law, or any profession for that matter, means,
to exercise or pursue an employment or profession actively, habitually, repeatedly or customarily.
Therefore, a doctor of medicine who is employed and is habitually performing the tasks of a nursing aide,
cannot be said to be in the "practice of medicine." A certified public accountant who works as a clerk,
cannot be said to practice his profession as an accountant. In the same way, a lawyer who is employed as
a business executive or a corporate manager, other than as head or attorney of a Legal Department of a
corporation or a governmental agency, cannot be said to be in the practice of law.
As aptly held by this Court in the case of People vs. Villanueva: 2
Practice is more than an isolated appearance for it consists in frequent or customary
actions, a succession of acts of the same kind. In other words, it is frequent habitual
exercise (State vs- Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of law to fall
within the prohibition of statute has been interpreted as customarily or habitually holding
one's self out to the public as a lawyer and demanding payment for such services (State vs.
Bryan, 4 S.E. 522, 98 N.C. 644,647.) ... (emphasis supplied).
It is worth mentioning that the respondent Commission on Appointments in a Memorandum it prepared,
enumerated several factors determinative of whether a particular activity constitutes "practice of law." It
states:
1. Habituality. The term "practice of law" implies customarily or habitually holding one's self
out to the public as a lawyer (People vs. Villanueva, 14 SCRA 109 citing State v. Boyen, 4
S.E. 522, 98 N.C. 644) such as when one sends a circular announcing the establishment of
a law office for the general practice of law (U.S. v. Ney Bosque, 8 Phil. 146), or when one
takes the oath of office as a lawyer before a notary public, and files a manifestation with the
Supreme Court informing it of his intention to practice law in all courts in the country (People
v. De Luna, 102 Phil. 968).
Practice is more than an isolated appearance for it consists in frequent or customary action,
a succession of acts of the same kind. In other words, it is a habitual exercise (People v.
Villanueva, 14 SCRA 109 citing State v. Cotner, 127, p. 1, 87 Kan, 864).
2. Compensation. Practice of law implies that one must have presented himself to be in the
active and continued practice of the legal profession and that his professional services are
available to the public for compensation, as a service of his livelihood or in consideration of
his said services. (People v. Villanueva, supra). Hence, charging for services such as
preparation of documents involving the use of legal knowledge and skill is within the term
"practice of law" (Ernani Pao, Bar Reviewer in Legal and Judicial Ethics, 1988 ed., p. 8
citing People v. People's Stockyards State Bank, 176 N.B. 901) and, one who renders an
opinion as to the proper interpretation of a statute, and receives pay for it, is to that extent,
practicing law (Martin, supra, p. 806 citing Mendelaun v. Gilbert and Barket Mfg. Co., 290
N.Y.S. 462) If compensation is expected, all advice to clients and all action taken for them in
matters connected with the law; are practicing law. (Elwood Fitchette et al., v. Arthur C.
Taylor, 94A-L.R. 356-359)
3. Application of law legal principle practice or procedure which calls for legal knowledge,
training and experience is within the term "practice of law". (Martin supra)
4. Attorney-client relationship. Engaging in the practice of law presupposes the existence of
lawyer-client relationship. Hence, where a lawyer undertakes an activity which requires
knowledge of law but involves no attorney-client relationship, such as teaching law or
writing law books or articles, he cannot be said to be engaged in the practice of his
profession or a lawyer (Agpalo, Legal Ethics, 1989 ed., p. 30). 3
The above-enumerated factors would, I believe, be useful aids in determining whether or not respondent
Monsod meets the constitutional qualification of practice of law for at least ten (10) years at the time of his
appointment as COMELEC Chairman.
The following relevant questions may be asked:
1. Did respondent Monsod perform any of the tasks which are peculiar to the practice of law?
2. Did respondent perform such tasks customarily or habitually?
3. Assuming that he performed any of such tasks habitually, did he do so HABITUALLY FOR AT LEAST
TEN (10) YEARS prior to his appointment as COMELEC Chairman?
Given the employment or job history of respondent Monsod as appears from the records, I am persuaded
that if ever he did perform any of the tasks which constitute the practice of law, he did not do so
HABITUALLY for at least ten (10) years prior to his appointment as COMELEC Chairman.
While it may be granted that he performed tasks and activities which could be latitudinarianly considered
activities peculiar to the practice of law, like the drafting of legal documents and the rendering of legal
opinion or advice, such were isolated transactions or activities which do not qualify his past endeavors as
"practice of law." To become engaged in the practice of law, there must be a continuity, or a succession of
acts. As observed by the Solicitor General in People vs. Villanueva: 4
Essentially, the word private practice of law implies that one must have presented himself to
be in the active and continued practice of the legal profession and that his professional
services are available to the public for a compensation, as a source of his livelihood or in
consideration of his said services.
ACCORDINGLY, my vote is to GRANT the petition and to declare respondent Monsod as not qualified for
the position of COMELEC Chairman for not having engaged in the practice of law for at least ten (10) years
prior to his appointment to such position.
CRUZ, J., dissenting:
I am sincerely impressed by the ponencia of my brother Paras but find I must dissent just the same. There
are certain points on which I must differ with him while of course respecting hisviewpoint.
To begin with, I do not think we are inhibited from examining the qualifications of the respondent simply
because his nomination has been confirmed by the Commission on Appointments. In my view, this is not a
political question that we are barred from resolving. Determination of the appointee's credentials is made
on the basis of the established facts, not the discretion of that body. Even if it were, the exercise of that
discretion would still be subject to our review.
In Luego, which is cited in the ponencia, what was involved was the discretion of the appointing authority
to choose between two claimants to the same office who both possessed the required qualifications. It was
that kind of discretion that we said could not be reviewed.
If a person elected by no less than the sovereign people may be ousted by this Court for lack of the
required qualifications, I see no reason why we cannot disqualified an appointee simply because he has
passed the Commission on Appointments.
Even the President of the Philippines may be declared ineligible by this Court in an appropriate proceeding
notwithstanding that he has been found acceptable by no less than the enfranchised citizenry. The reason
is that what we would be examining is not the wisdom of his election but whether or not he was qualified to
be elected in the first place.
Coming now to the qualifications of the private respondent, I fear that the ponencia may have been too
sweeping in its definition of the phrase "practice of law" as to render the qualification practically toothless.
From the numerous activities accepted as embraced in the term, I have the uncomfortable feeling that one
does not even have to be a lawyer to be engaged in the practice of law as long as his activities involve the
application of some law, however peripherally. The stock broker and the insurance adjuster and the realtor
could come under the definition as they deal with or give advice on matters that are likely "to become
involved in litigation."
The lawyer is considered engaged in the practice of law even if his main occupation is another business
and he interprets and applies some law only as an incident of such business. That covers every company
organized under the Corporation Code and regulated by the SEC under P.D. 902-A. Considering the
ramifications of the modern society, there is hardly any activity that is not affected by some law or
government regulation the businessman must know about and observe. In fact, again going by the
definition, a lawyer does not even have to be part of a business concern to be considered a practitioner. He
can be so deemed when, on his own, he rents a house or buys a car or consults a doctor as these acts
involve his knowledge and application of the laws regulating such transactions. If he operates a public utility
vehicle as his main source of livelihood, he would still be deemed engaged in the practice of law because
he must obey the Public Service Act and the rules and regulations of the Energy Regulatory Board.
The ponencia quotes an American decision defining the practice of law as the "performance of any acts . . .
in or out of court, commonly understood to be the practice of law," which tells us absolutely nothing. The
decision goes on to say that "because lawyers perform almost every function known in the commercial and
governmental realm, such a definition would obviously be too global to be workable."
The effect of the definition given in the ponencia is to consider virtually every lawyer to be engaged in the
practice of law even if he does not earn his living, or at least part of it, as a lawyer. It is enough that his
activities are incidentally (even if only remotely) connected with some law, ordinance, or regulation. The
possible exception is the lawyer whose income is derived from teaching ballroom dancing or escorting
wrinkled ladies with pubescent pretensions.
The respondent's credentials are impressive, to be sure, but they do not persuade me that he has been
engaged in the practice of law for ten years as required by the Constitution. It is conceded that he has been
engaged in business and finance, in which areas he has distinguished himself, but as an executive and
economist and not as a practicing lawyer. The plain fact is that he has occupied the various positions listed
in his resume by virtue of his experience and prestige as a businessman and not as an attorney-at-law
whose principal attention is focused on the law. Even if it be argued that he was acting as a lawyer when he
lobbied in Congress for agrarian and urban reform, served in the NAMFREL and the Constitutional
Commission (together with non-lawyers like farmers and priests) and was a member of the Davide
Commission, he has not proved that his activities in these capacities extended over the prescribed 10-year
period of actual practice of the law. He is doubtless eminently qualified for many other positions worthy of
his abundant talents but not as Chairman of the Commission on Elections.
I have much admiration for respondent Monsod, no less than for Mr. Justice Paras, but I must regretfully
vote to grant the petition.
GUTIERREZ, JR., J., dissenting:
When this petition was filed, there was hope that engaging in the practice of law as a qualification for public
office would be settled one way or another in fairly definitive terms. Unfortunately, this was not the result.
Of the fourteen (14) member Court, 5 are of the view that Mr. Christian Monsod engaged in the practice of
law (with one of these 5 leaving his vote behind while on official leave but not expressing his clear stand on
the matter); 4 categorically stating that he did not practice law; 2 voting in the result because there was no
error so gross as to amount to grave abuse of discretion; one of official leave with no instructions left
behind on how he viewed the issue; and 2 not taking part in the deliberations and the decision.
There are two key factors that make our task difficult. First is our reviewing the work of a constitutional
Commission on Appointments whose duty is precisely to look into the qualifications of persons appointed to
high office. Even if the Commission errs, we have no power to set aside error. We can look only into grave
abuse of discretion or whimsically and arbitrariness. Second is our belief that Mr. Monsod possesses
superior qualifications in terms of executive ability, proficiency in management, educational background,
experience in international banking and finance, and instant recognition by the public. His integrity and
competence are not questioned by the petitioner. What is before us is compliance with a specific
requirement written into the Constitution.
Inspite of my high regard for Mr. Monsod, I cannot shirk my constitutional duty. He has never engaged in
the practice of law for even one year. He is a member of the bar but to say that he has practiced law is
stretching the term beyond rational limits.
A person may have passed the bar examinations. But if he has not dedicated his life to the law, if he has
not engaged in an activity where membership in the bar is a requirement I fail to see how he can claim to
have been engaged in the practice of law.
Engaging in the practice of law is a qualification not only for COMELEC chairman but also for appointment
to the Supreme Court and all lower courts. What kind of Judges or Justices will we have if there main
occupation is selling real estate, managing a business corporation, serving in fact-finding committee,
working in media, or operating a farm with no active involvement in the law, whether in Government or
private practice, except that in one joyful moment in the distant past, they happened to pass the bar
examinations?
The Constitution uses the phrase "engaged in the practice of law for at least ten years." The deliberate
choice of words shows that the practice envisioned is active and regular, not isolated, occasional,
accidental, intermittent, incidental, seasonal, or extemporaneous. To be "engaged" in an activity for ten
years requires committed participation in something which is the result of one's decisive choice. It means
that one is occupied and involved in the enterprise; one is obliged or pledged to carry it out with intent and
attention during the ten-year period.
I agree with the petitioner that based on the bio-data submitted by respondent Monsod to the Commission
on Appointments, the latter has not been engaged in the practice of law for at least ten years. In fact, if
appears that Mr. Monsod has never practiced law except for an alleged one year period after passing the
bar examinations when he worked in his father's law firm. Even then his law practice must have been
extremely limited because he was also working for M.A. and Ph. D. degrees in Economics at the University
of Pennsylvania during that period. How could he practice law in the United States while not a member of
the Bar there?
The professional life of the respondent follows:
1.15.1. Respondent Monsod's activities since his passing the Bar examinations in 1961
consist of the following:
1. 1961-1963: M.A. in Economics (Ph. D. candidate), University of Pennsylvania
2. 1963-1970: World Bank Group Economist, Industry Department; Operations, Latin
American Department; Division Chief, South Asia and Middle East, International Finance
Corporation
3. 1970-1973: Meralco Group Executive of various companies, i.e., Meralco Securities
Corporation, Philippine Petroleum Corporation, Philippine Electric Corporation
4. 1973-1976: Yujuico Group President, Fil-Capital Development Corporation and
affiliated companies
5. 1976-1978: Finaciera Manila Chief Executive Officer
6. 1978-1986: Guevent Group of Companies Chief Executive Officer
7. 1986-1987: Philippine Constitutional Commission Member
8. 1989-1991: The Fact-Finding Commission on the December 1989 Coup Attempt
Member
9. Presently: Chairman of the Board and Chief Executive Officer of the following companies:
a. ACE Container Philippines, Inc.
b. Dataprep, Philippines
c. Philippine SUNsystems Products, Inc.
d. Semirara Coal Corporation
e. CBL Timber Corporation
Member of the Board of the Following:
a. Engineering Construction Corporation of the Philippines
b. First Philippine Energy Corporation
c. First Philippine Holdings Corporation
 d. First Philippine Industrial Corporation
e. Graphic Atelier
f. Manila Electric Company
g. Philippine Commercial Capital, Inc.
h. Philippine Electric Corporation
i. Tarlac Reforestation and Environment Enterprises
j. Tolong Aquaculture Corporation
k. Visayan Aquaculture Corporation
l. Guimaras Aquaculture Corporation (Rollo, pp. 21-22)
There is nothing in the above bio-data which even remotely indicates that respondent Monsod has
given the law enough attention or a certain degree of commitment and participation as would support in all
sincerity and candor the claim of having engaged in its practice for at least ten years. Instead of working as
a lawyer, he has lawyers working for him. Instead of giving receiving that legal advice of legal services, he
was the oneadvice and those services as an executive but not as a lawyer.
The deliberations before the Commission on Appointments show an effort to equate "engaged in the
practice of law" with the use of legal knowledge in various fields of endeavor such as commerce, industry,
civic work, blue ribbon investigations, agrarian reform, etc. where such knowledge would be helpful.
I regret that I cannot join in playing fast and loose with a term, which even an ordinary layman accepts as
having a familiar and customary well-defined meaning. Every resident of this country who has reached the
age of discernment has to know, follow, or apply the law at various times in his life. Legal knowledge is
useful if not necessary for the business executive, legislator, mayor, barangay captain, teacher, policeman,
farmer, fisherman, market vendor, and student to name only a few. And yet, can these people honestly
assert that as such, they are engaged in the practice of law?
The Constitution requires having been "engaged in the practice of law for at least ten years." It is not
satisfied with having been "a member of the Philippine bar for at least ten years."
Some American courts have defined the practice of law, as follows:
The practice of law involves not only appearance in court in connection with litigation but
also services rendered out of court, and it includes the giving of advice or the rendering of
any services requiring the use of legal skill or knowledge, such as preparing a will, contract
or other instrument, the legal effect of which, under the facts and conditions involved, must
be carefully determined. People ex rel. Chicago Bar Ass'n v. Tinkoff, 399 Ill. 282, 77 N.E.2d
693; People ex rel. Illinois State Bar Ass'n v. People's Stock Yards State Bank, 344 Ill.
462,176 N.E. 901, and cases cited.
It would be difficult, if not impossible to lay down a formula or definition of what constitutes
the practice of law. "Practicing law" has been defined as "Practicing as an attorney or
counselor at law according to the laws and customs of our courts, is the giving of advice or
rendition of any sort of service by any person, firm or corporation when the giving of such
advice or rendition of such service requires the use of any degree of legal knowledge or
skill." Without adopting that definition, we referred to it as being substantially correct
in People ex rel. Illinois State Bar Ass'n v. People's Stock Yards State Bank, 344 Ill. 462,176
N.E. 901. (People v. Schafer, 87 N.E. 2d 773, 776)
For one's actions to come within the purview of practice of law they should not only be activities peculiar to
the work of a lawyer, they should also be performed, habitually, frequently or customarily, to wit:
xxx xxx xxx
Respondent's answers to questions propounded to him were rather evasive. He was asked
whether or not he ever prepared contracts for the parties in real-estate transactions where
he was not the procuring agent. He answered: "Very seldom." In answer to the question as
 to how many times he had prepared contracts for the parties during the twenty-one years of
his business, he said: "I have no Idea." When asked if it would be more than half a dozen
times his answer was I suppose. Asked if he did not recall making the statement to several
parties that he had prepared contracts in a large number of instances, he answered: "I don't
recall exactly what was said." When asked if he did not remember saying that he had made
a practice of preparing deeds, mortgages and contracts and charging a fee to the parties
therefor in instances where he was not the broker in the deal, he answered: "Well, I don't
believe so, that is not a practice." Pressed further for an answer as to his practice in
preparing contracts and deeds for parties where he was not the broker, he finally answered:
"I have done about everything that is on the books as far as real estate is concerned."
xxx xxx xxx
Respondent takes the position that because he is a real-estate broker he has a lawful right
to do any legal work in connection with real-estate transactions, especially in drawing of
real-estate contracts, deeds, mortgages, notes and the like. There is no doubt but that he
has engaged in these practices over the years and has charged for his services in that
connection. ... (People v. Schafer, 87 N.E. 2d 773)
xxx xxx xxx
... An attorney, in the most general sense, is a person designated or employed by another to
act in his stead; an agent; more especially, one of a class of persons authorized to appear
and act for suitors or defendants in legal proceedings. Strictly, these professional persons
are attorneys at law, and non-professional agents are properly styled "attorney's in fact;" but
the single word is much used as meaning an attorney at law. A person may be an attorney
in facto for another, without being an attorney at law. Abb. Law Dict. "Attorney." A public
attorney, or attorney at law, says Webster, is an officer of a court of law, legally qualified to
prosecute and defend actions in such court on the retainer of clients. "The principal duties of
an attorney are (1) to be true to the court and to his client; (2) to manage the business of his
client with care, skill, and integrity; (3) to keep his client informed as to the state of his
business; (4) to keep his secrets confided to him as such. ... His rights are to be justly
compensated for his services." Bouv. Law Dict. tit. "Attorney." The transitive verb "practice,"
as defined by Webster, means 'to do or perform frequently, customarily, or habitually; to
perform by a succession of acts, as, to practice gaming, ... to carry on in practice, or
repeated action; to apply, as a theory, to real life; to exercise, as a profession, trade, art.
etc.; as, to practice law or medicine,' etc...." (State v. Bryan, S.E. 522, 523; Emphasis
supplied)
In this jurisdiction, we have ruled that the practice of law denotes frequency or a succession of acts. Thus,
we stated in the case of People v. Villanueva (14 SCRA 109 [1965]):
xxx xxx xxx
... Practice is more than an isolated appearance, for it consists in frequent or customary actions, a
succession of acts of the same kind. In other words, it is frequent habitual exercise (State v. Cotner, 127, p.
1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of law to fall within the prohibition of statute has been
interpreted as customarily or habitually holding one's self out to the public, as a lawyer and demanding
payment for such services. ... . (at p. 112)
It is to be noted that the Commission on Appointment itself recognizes habituality as a required component
of the meaning of practice of law in a Memorandum prepared and issued by it, to wit:
l. Habituality. The term 'practice of law' implies customarilyor habitually holding one's self
out to the public as a lawyer (People v. Villanueva, 14 SCRA 109 citing State v. Bryan, 4
S.E. 522, 98 N.C. 644) such as when one sends a circular announcing the establishment of
a law office for the general practice of law (U.S. v. Noy Bosque, 8 Phil. 146), or when one
takes the oath of office as a lawyer before a notary public, and files a manifestation with the
Supreme Court informing it of his intention to practice law in all courts in the country (People
v. De Luna, 102 Phil. 968).
 Practice is more than an isolated appearance, for it consists in frequent or customary
action, a succession of acts of the same kind. In other words, it is a habitual exercise
(People v. Villanueva, 14 SCRA 1 09 citing State v. Cotner, 1 27, p. 1, 87 Kan, 864)." (Rollo,
p. 115)
xxx xxx xxx
While the career as a businessman of respondent Monsod may have profited from his legal knowledge, the
use of such legal knowledge is incidental and consists of isolated activities which do not fall under the
denomination of practice of law. Admission to the practice of law was not required for membership in the
Constitutional Commission or in the Fact-Finding Commission on the 1989 Coup Attempt. Any specific legal
activities which may have been assigned to Mr. Monsod while a member may be likened to isolated
transactions of foreign corporations in the Philippines which do not categorize the foreign corporations as
doing business in the Philippines. As in the practice of law, doing business also should be active and
continuous. Isolated business transactions or occasional, incidental and casual transactions are not within
the context of doing business. This was our ruling in the case of Antam Consolidated, Inc. v. Court of
appeals, 143 SCRA 288 [1986]).
Respondent Monsod, corporate executive, civic leader, and member of the Constitutional Commission may
possess the background, competence, integrity, and dedication, to qualify for such high offices as
President, Vice-President, Senator, Congressman or Governor but the Constitution in prescribing the
specific qualification of having engaged in the practice of law for at least ten (10) years for the position of
COMELEC Chairman has ordered that he may not be confirmed for that office. The Constitution charges
the public respondents no less than this Court to obey its mandate.
I, therefore, believe that the Commission on Appointments committed grave abuse of discretion in
confirming the nomination of respondent Monsod as Chairman of the COMELEC.
I vote to GRANT the petition.
Bidin, J., dissent

RE: PETITION OF AL ARGOSINO TO TAKE THE LAWYER'S OATH

The practice of law is a privilege granted only to those who possess the strict intellectual and
moral qualifications required of lawyers who are instruments in the effective and efficient
administration o f justice. It is the sworn duty of this Court not only to "weed out" lawyers who
have become a disgrace to the noble profession of the law but, also of equal importance, to
prevent "misfits" from taking the lawyer' s oath, thereby further tarnishing the public image of
lawyers which in recent years has undoubtedly become less than irreproachable.

The resolution of the issue before us required a weighing and re-weighing of the reasons for
allowing or disallowing petitioner's admission to the practice of law. The senseless beatings
inf1icted upon Raul Camaligan constituted evident absence of that moral fitness required for
admission to the bar since they were totally irresponsible, irrelevant and uncalled for.

In the 13 July 1995 resolution in this case we stated:

"x x x participation in the prolonged and mindless physical behavior, [which] makes
impossible a finding that the participant [herein petitioner] was then possessed of good
moral character."[1]

In the same resolution, however, we stated that the Court is prepared to consider de novo the
question of whether petitioner has purged himself of the obvious deficiency in moral character
referred to above.

Before anything else, the Court understands and shares the sentiment of Atty. Gilbert Camaligan.
The death of one's child is, for a parent, a most traumatic experience. The suffering becomes even
more pronounced and profound in cases where the death is due to causes other than natural or
accidental but due to the reckless imprudence of third parties. The feeling then becomes a
struggle between grief and anger directed at the cause of death.

Atty. Camaligan's statement before the Court manifesting his having forgiven the accused is no
less than praiseworthy and commendable. It is exceptional for a parent, given the circumstances
in this cases, to find room for forgiveness.

However, Atty. Camaligan admits that he is still not in a position to state if petitioner is now
morally fit to be a lawyer.

After a very careful evaluation of this case, we resolve to allow petitioner Al Caparros Argosino to
take the lawyer's oath, sign the Roll of Attorneys and practice the legal profession with the
following admonition:

In allowing Mr. Argosino to take the lawyer's oath, the Court recognizes that Mr. Argosino is not
inherently of bad moral fiber. On the contrary, the various certifications show that he is a devout
Catholic with a genuine concern for civic duties and public service.

The Court is persuaded that Mr. Argosino has exerted all efforts to atone for the death of Raul
Camaligan. We are prepared to give him the benefit of the doubt, taking judicial notice of the
general tendency of youth to be rash, temerarious and uncalculating.

We stress to Mr. Argosino that the lawyer's oath is NOT a mere ceremony or formality for practicing
law. Every lawyer should at ALL TIMES weigh his actions according to the sworn promises he
makes when taking the lawyer's oath. If all lawyers conducted themselves strictly according to the
lawyer's oath and the Code of Professional Responsibility, the administration of justice will
undoubtedly be faster, fairer and easier for everyone concerned.

The Court sincerely hopes that Mr. Argosino will continue with the assistance he has been giving to
his community. As a lawyer he will now be in a better position to render legal and other services to
the more unfortunate members of society.

PREMISES CONSIDERED, petitioner Al Caparros Argosino is hereby ALLOWED to take the

lawyer's oath on a date to be set by the Court, to sign the Roll of Attorneys and, thereafter, to
practice the legal profession.

DONNA MARIE S. AGUIRRE, COMPLAINANT, VS. EDWIN L. RANA, RESPONDENT.

The Court's Ruling

We agree with the findings and conclusions of the OBC that respondent engaged in the
unauthorized practice of law and thus does not deserve admission to the Philippine Bar.

Respondent took his oath as lawyer on 22 May 2001. However, the records show that respondent
appeared as counsel for Bunan prior to 22 May 2001, before respondent took the lawyer's oath. In
the pleading entitled Formal Objection to the Inclusion in the Canvassing of Votes in Some
Precincts for the Office of Vice-Mayor dated 19 May 2001, respondent signed as" counsel for
George Bunan." In the first paragraph of the same pleading respondent stated that he was the
"(U)ndersigned Counsel for, and in behalf of Vice Mayoralty Candidate, GEORGE T.
BUNAN." Bunan himself wrote the MBEC on 14 May 2001 that he had "authorized Atty. Edwin L.
Rana as his counsel to represent him" before the MBEC and similar bodies.

On 14 May 2001, mayoralty candidate Emily Estipona-Hao also "retained" respondent as her
counsel. On the same date, 14 May 2001, Erly D. Hao informed the MBEC that "Atty. Edwin L. Rana
has been authorized by REFORMA LM-PPC as the legal counsel of the party and the candidate of
the said party." Respondent himself wrote the MBEC on 14 May 2001 that he was entering his
"appearance as counsel for Mayoralty Candidate Emily Estipona-Hao and for the
REFORMA LM-PPC." On 19 May 2001, respondent signed as counsel for Estipona-Hao in the
petition filed before the MBEC praying for the proclamation of Estipona-Hao as the winning
candidate for mayor of Mandaon, Masbate.

All these happened even before respondent took the lawyer's oath. Clearly, respondent engaged
in the practice of law without being a member of the Philippine Bar.

In Philippine Lawyers Association v. Agrava,[1] the Court elucidated that:

The practice of law is not limited to the conduct of cases or litigation in court; it
embraces the preparation of pleadings and other papers incident to actions and special
proceedings, the management of such actions and proceedings on behalf of clients
before judges and courts, and in addition, conveyancing. In general, all advice to
clients, and all action taken for them in matters connected with the law, incorporation
services, assessment and condemnation services contemplating an appearance before
a judicial body, the foreclosure of a mortgage, enforcement of a creditor's claim in
bankruptcy and insolvency proceedings, and conducting proceedings in attachment,
and in matters of estate and guardianship have been held to constitute law practice, as
do the preparation and drafting of legal instruments, where the work done involves the
determination by the trained legal mind of the legal effect of facts and conditions. (5
Am. Jur. p. 262, 263). (Italics supplied) x x x

In Cayetano v. Monsod,[2] the Court held that "practice of law" means any activity, in or out of
court, which requires the application of law, legal procedure, knowledge, training and experience.
To engage in the practice of law is to perform acts which are usually performed by members of the
legal profession. Generally, to practice law is to render any kind of service which requires the use
of legal knowledge or skill.

Verily, respondent was engaged in the practice of law when he appeared in the proceedings before
the MBEC and filed various pleadings, without license to do so. Evidence clearly supports the
charge of unauthorized practice of law. Respondent called himself "counsel" knowing fully well that
he was not a member of the Bar. Having held himself out as "counsel" knowing that he had no
authority to practice law, respondent has shown moral unfitness to be a member of the Philippine
Bar.[3]

The right to practice law is not a natural or constitutional right but is a privilege. It is limited to
persons of good moral character with special qualifications duly ascertained and certified. The
exercise of this privilege presupposes possession of integrity, legal knowledge, educational
attainment, and even public trust[4] since a lawyer is an officer of the court. A bar candidate does
not acquire the right to practice law simply by passing the bar examinations. The practice of law is
a privilege that can be withheld even from one who has passed the bar examinations, if the person
seeking admission had practiced law without a license.[5]

The regulation of the practice of law is unquestionably strict. In Beltran, Jr. v. Abad,[6] a
candidate passed the bar examinations but had not taken his oath and signed the Roll of
Attorneys. He was held in contempt of court for practicing law even before his admission to the
Bar. Under Section 3 (e) of Rule 71 of the Rules of Court, a person who engages in the
unauthorized practice of law is liable for indirect contempt of court.[7]

True, respondent here passed the 2000 Bar Examinations and took the lawyer's oath. However, it
is the signing in the Roll of Attorneys that finally makes one a full-fledged lawyer. The fact that
respondent passed the bar examinations is immaterial. Passing the bar is not the only qualification
to become an attorney-at-law.[8] Respondent should know that two essential requisites for
becoming a lawyer still had to be performed, namely: his lawyer's oath to be administered by this
Court and his signature in the Roll of Attorneys.[9]

On the charge of violation of law, complainant contends that the law does not allow respondent to
act as counsel for a private client in any court or administrative body since respondent is the
secretary of the Sangguniang Bayan.
Respondent tendered his resignation as secretary of the Sangguniang Bayan prior to the acts
complained of as constituting unauthorized practice of law. In his letter dated 11 May 2001
addressed to Napoleon Relox, vice- mayor and presiding officer of the Sangguniang Bayan,
respondent stated that he was resigning "effective upon your acceptance."[10] Vice-Mayor Relox
accepted respondent's resignation effective 11 May 2001.[11] Thus, the evidence does not support
the charge that respondent acted as counsel for a client while serving as secretary of the
Sangguniang Bayan.

On the charge of grave misconduct and misrepresentation, evidence shows that Bunan indeed
authorized respondent to represent him as his counsel before the MBEC and similar bodies. While
there was no misrepresentation, respondent nonetheless had no authority to practice law.

WHEREFORE, respondent Edwin L. Rana is DENIED admission to the Philippine Bar.

SOPHIA ALAWI, COMPLAINANT, VS. ASHARY M. ALAUYA, CLERK OF COURT VI, SHARI'A
DISTRICT COURT, MARAWI CITY, RESPONDENT.

Alauya's defense essentially is that in making these statements, he was merely acting in defense
of his rights, and doing only what "is expected of any man unduly prejudiced and injured," who
had suffered "mental anguish, sleepless nights, wounded feelings and untold financial suffering,"
considering that in six months, a total of P26,028.60 had been deducted from his salary.[15]

The Code of Conduct and Ethical Standards for Public Officials and Employees (RA 6713) inter alia
enunciates the State policy of promoting a high standard of ethics and utmost responsibility in the
public service.[16] Section 4 of the Code commands that "(p)ublic officials and employees ** at all
times respect the rights of others, and ** refrain from doing acts contrary to law, good morals,
good customs, public policy, public order, public safety and public interest."[17] More than once
has this Court emphasized that "the conduct and behavior of every official and employee of an
agency involved in the administration of justice, from the presiding judge to the most junior clerk,
should be circumscribed with the heavy burden of responsibility. Their conduct must at all times be
characterized by, among others, strict propriety and decorum so as to earn and keep the respect
of the public for the judiciary."[18]

Now, it does not appear to the Court consistent with good morals, good customs or public policy,
or respect for the rights of others, to couch denunciations of acts believed -- however sincerely --
to be deceitful, fraudulent or malicious, in excessively intemperate. insulting or virulent language.
Alauya is evidently convinced that he has a right of action against Sophia Alawi. The law requires
that he exercise that right with propriety, without malice or vindictiveness, or undue harm to
anyone; in a manner consistent with good morals, good customs, public policy, public order, supra;
or otherwise stated, that he "act with justice, give everyone his due, and observe honesty and
good faith."[19] Righteous indignation, or vindication of right cannot justify resort to vituperative
language, or downright name-calling. As a member of the Shari'a Bar and an officer of a Court,
Alawi is subject to a standard of conduct more stringent than for most other government workers.
As a man of the law, he may not use language which is abusive, offensive, scandalous, menacing,
or otherwise improper.[20] As a judicial employee, it is expected that he accord respect for the
person and the rights of others at all times, and that his every act and word should be
characterized by prudence, restraint, courtesy, dignity. His radical deviation from these salutary
norms might perhaps be mitigated, but cannot be excused, by his strongly held conviction that he
had been grievously wronged.

As regards Alauya's use of the title of "Attorney," this Court has already had occasion to declare
that persons who pass the Shari'a Bar are not full-fledged members of the Philippine Bar, hence
may only practice law before Shari'a courts.[21] While one who has been admitted to the Shari'a
Bar, and one who has been admitted to the Philippine Bar, may both be considered "counsellors,"
in the sense that they give counsel or advice in a professional capacity, only the latter is an
"attorney." The title of "attorney" is reserved to those who, having obtained the necessary degree
in the study of law and successfully taken the Bar Examinations, have been admitted to the
Integrated Bar of the Philippines and remain members thereof in good standing; and it is they only
who are authorized to practice law in this jurisdiction.

Alauya says he does not wish to use the title, "counsellor" or "counsellor-at-law," because in his
region, there are pejorative connotations to the term, or it is confusingly similar to that given to
local legislators. The ratiocination, valid or not, is of no moment. His disinclination to use the title
of "counsellor" does not warrant his use of the title of attorney.

Finally, respecting Alauya's alleged unauthorized use of the franking privilege, the record contains
no evidence adequately establishing the accusation.

WHEREFORE, respondent Ashari M. Alauya is hereby REPRIMANDED for the use of excessively
intemperate, insulting or virulent language, i.e., language unbecoming a judicial officer, and for
usurping the title of attorney; and he is warned that any similar or other impropriety or misconduct
in the future will be dealt with more severely.

PEDRO L. LINSANGAN, COMPLAINANT, VS. ATTY. NICOMEDES TOLENTINO, RESPONDENT.

The complaint before us is rooted on the alleged intrusion by respondent into complainant's
professional practice in violation of Rule 8.02 of the CPR. And the means employed by respondent
in furtherance of the said misconduct themselves constituted distinct violations of ethical rules.

Canons of the CPR are rules of conduct all lawyers must adhere to, including the manner by which
a lawyer's services are to be made known. Thus, Canon 3 of the CPR provides:
CANON 3 - A LAWYER IN MAKING KNOWN HIS LEGAL SERVICES SHALL USE ONLY TRUE,
HONEST, FAIR, DIGNIFIED AND OBJECTIVE INFORMATION OR STATEMENT OF FACTS.

Time and time again, lawyers are reminded that the practice of law is a profession and not a
business; lawyers should not advertise their talents as merchants advertise their wares.[13]
To allow a lawyer to advertise his talent or skill is to commercialize the practice of law,
degrade the profession in the public's estimation and impair its ability to efficiently render
that high character of service to which every member of the bar is called.[14]

Rule 2.03 of the CPR provides:

RULE 2.03. A LAWYER SHALL NOT DO OR PERMIT TO BE DONE ANY ACT DESIGNED
PRIMARILY TO SOLICIT LEGAL BUSINESS.

Hence, lawyers are prohibited from soliciting cases for the purpose of gain, either personally or
through paid agents or brokers.[15] Such actuation constitutes malpractice, a ground for
disbarment.[16]

Rule 2.03 should be read in connection with Rule 1.03 of the CPR which provides:
RULE 1.03. A LAWYER SHALL NOT, FOR ANY CORRUPT MOTIVE OR INTEREST,
ENCOURAGE ANY SUIT OR PROCEEDING OR DELAY ANY MAN'S CAUSE.

This rule proscribes "ambulance chasing" (the solicitation of almost any kind of legal business by
an attorney, personally or through an agent in order to gain employment)[17] as a measure to
protect the community from barratry and champerty.[18]
Complainant presented substantial evidence[19] (consisting of the sworn statements of the very
same persons coaxed by Labiano and referred to respondent's office) to prove that respondent
indeed solicited legal business as well as profited from referrals' suits.

Although respondent initially denied knowing Labiano in his answer, he later admitted it during the
mandatory hearing.

Through Labiano's actions, respondent's law practice was benefited. Hapless seamen were enticed
to transfer representation on the strength of Labiano's word that respondent could produce a more
favorable result.

Based on the foregoing, respondent clearly solicited employment violating Rule 2.03, and Rule
1.03 and Canon 3 of the CPR and Section 27, Rule 138 of the Rules of Court.

With regard to respondent's violation of Rule 8.02 of the CPR, settled is the rule that a lawyer
should not steal another lawyer's client nor induce the latter to retain him by a promise of better
service, good result or reduced fees for his services.[20] Again the Court notes that respondent
never denied having these seafarers in his client list nor receiving benefits from Labiano's
"referrals." Furthermore, he never denied Labiano's connection to his office.[21] Respondent
committed an unethical, predatory overstep into another's legal practice. He cannot escape
liability under Rule 8.02 of the CPR.

Moreover, by engaging in a money-lending venture with his clients as borrowers, respondent

violated Rule 16.04:
Rule 16.04 - A lawyer shall not borrow money from his client unless the client's
interests are fully protected by the nature of the case or by independent advice.
Neither shall a lawyer lend money to a client except, when in the interest of justice, he
has to advance necessary expenses in a legal matter he is handling for the client.

The rule is that a lawyer shall not lend money to his client. The only exception is, when in the
interest of justice, he has to advance necessary expenses (such as filing fees, stenographer's fees
for transcript of stenographic notes, cash bond or premium for surety bond, etc.) for a matter that
he is handling for the client.

The rule is intended to safeguard the lawyer's independence of mind so that the free exercise of
his judgment may not be adversely affected.[22] It seeks to ensure his undivided attention to the
case he is handling as well as his entire devotion and fidelity to the client's cause. If the lawyer
lends money to the client in connection with the client's case, the lawyer in effect acquires an
interest in the subject matter of the case or an additional stake in its outcome.[23] Either of these
circumstances may lead the lawyer to consider his own recovery rather than that of his client, or
to accept a settlement which may take care of his interest in the verdict to the prejudice of the
client in violation of his duty of undivided fidelity to the client's cause.[24]

As previously mentioned, any act of solicitation constitutes malpractice[25] which calls for the
exercise of the Court's disciplinary powers. Violation of anti-solicitation statutes warrants serious
sanctions for initiating contact with a prospective client for the purpose of obtaining employment.
[26] Thus, in this jurisdiction, we adhere to the rule to protect the public from the Machiavellian
machinations of unscrupulous lawyers and to uphold the nobility of the legal profession.

Considering the myriad infractions of respondent (including violation of the prohibition on lending
money to clients), the sanction recommended by the IBP, a mere reprimand, is a wimpy slap on
the wrist. The proposed penalty is grossly incommensurate to its findings.

A final word regarding the calling card presented in evidence by petitioner. A lawyer's best
advertisement is a well-merited reputation for professional capacity and fidelity to trust based on
his character and conduct.[27] For this reason, lawyers are only allowed to announce their services
by publication in reputable law lists or use of simple professional cards.

Professional calling cards may only contain the following details:

(a) lawyer's name;
(b) name of the law firm with which he is connected;
(c) address;
(d) telephone number and
(e) special branch of law practiced.[28]

Labiano's calling card contained the phrase "with financial assistance." The phrase was clearly
used to entice clients (who already had representation) to change counsels with a promise of loans
to finance their legal actions. Money was dangled to lure clients away from their original lawyers,
thereby taking advantage of their financial distress and emotional vulnerability. This crass
commercialism degraded the integrity of the bar and deserved no place in the legal profession.
However, in the absence of substantial evidence to prove his culpability, the Court is not prepared
to rule that respondent was personally and directly responsible for the printing and distribution of
Labiano's calling cards.
WHEREFORE, respondent Atty. Nicomedes Tolentino for violating Rules 1.03, 2.03, 8.02 and 16.04
and Canon 3 of the Code of Professional Responsibility and Section 27, Rule 138 of the Rules of
Court is hereby SUSPENDED from the practice of law for a period of one year effective
immediately from receipt of this resolution. He is STERNLY WARNED that a repetition of the same
or similar acts in the future shall be dealt with more severely.

REBECCA B. ARNOBIT, COMPLAINANT, VS. ATTY. PONCIANO P. ARNOBIT, RESPONDENT.

While the Court concurs with the inculpatory findings of the IBP on the charge of abandonment, it
cannot bring itself to agree that respondent is liable only for that offense. As it were, the charge
for gross immoral conduct has sufficiently been proven. Following established jurisprudence,
respondent deserves to be disbarred.

The Code of Professional Responsibility provides:

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

CANON 7 - A lawyer shall at all times uphold the integrity and dignity of the legal
profession and support the activities of the Integrated Bar.

Rule 7.03- A lawyer shall not engage in conduct that adversely reflects on his fitness to
practice law, nor should he, whether in public or private life, behave in a scandalous
manner to the discredit of the legal profession.

As this Court often reminds members of the bar, the requirement of good moral character is of
much greater import, as far as the general public is concerned, than the possession of legal
learning. Good moral character is not only a condition precedent for admission to the legal
profession, but it must also remain intact in order to maintain one's good standing in that
exclusive and honored fraternity. Good moral character is more than just the absence of bad
character. Such character expresses itself in the will to do the unpleasant thing if it is right and the
resolve not to do the pleasant thing if it is wrong. This must be so because "vast interests are
committed to his care; he is the recipient of unbounded trust and confidence; he deals with his
client's property, reputation, his life, his all."[5]

Immoral conduct has been described as that conduct which is so willful, flagrant, or shameless as
to show indifference to the opinion of good and respectable members of the community. To be the
basis of disciplinary action, such conduct must not only be immoral, but grossly immoral. That is, it
must be so corrupt as to virtually constitute a criminal act or so unprincipled as to be
reprehensible to a high degree or committed under such scandalous or revolting circumstances as
to shock the common sense of decency.[6]

As officers of the court, lawyers must not only in fact be of good moral character but must also be
seen to be of good moral character and leading lives in accordance with the highest moral
standards of the community.[7] A member of the bar and an officer of the court is not only
required to refrain from adulterous relationships or keeping a mistress but must also so behave
himself as to avoid scandalizing the public by creating the impression that he is flouting those
moral standards.

A review of the records readily reveals that despite the protracted delay in the hearings mainly
caused by respondent's failure to appear, complainant relentlessly pursued this administrative
case against her husband. She was, to be sure, able to establish by clear, convincing, and
preponderant evidence his commission of marital infidelity and abandonment of his family.

Although respondent in his answer denied abandoning complainant and their children and offered
an explanation as to the cause of his and his wife's separation, he opted not to take the witness
stand and be cross- examined on his sworn answer. Neither did he bother to call and present his
alleged paramour, Benita, who could have had disproved an existing adulterous relationship
between them, or, at least, confirm his protestation about the paternity of her four children.
Significantly, Benita's husband, no less, risked personal ridicule by testifying on the illicit liaison
between his wife and respondent.

The fact that respondent's philandering ways are far removed from the exercise of his profession
would not save the day for him. For a lawyer may be suspended or disbarred for any misconduct
which, albeit unrelated to the actual practice of his profession, would show him to be unfit for the
office and unworthy of the privileges with which his license and the law invest him.[8] To borrow
from Orbe v. Adaza, "[t]he grounds expressed in Section 27, Rule 138,[9] of the Rules of Court are
not limitative and are broad enough to cover any misconduct x x x of a lawyer in his professional
or private capacity."[10] To reiterate, possession of good moral character is not only a condition
precedent to the practice of law, but a continuing qualification for all members of the bar.

While the onus rests on the complainant proffering the charges to prove the same, respondent
owes himself and the Court the duty to show that he is morally fit to remain a member of the bar.
Mere denial of wrongdoing would not suffice in the face of clear evidence demonstrating unfitness.

When one's moral character is assailed, such that his right to continue practicing his cherished
profession is imperiled, it behooves the individual concerned to meet the charges squarely and
present evidence, to the satisfaction of the investigating body and this Court, that he is morally fit
to keep his name in the Roll of Attorneys.[11] Respondent has not discharged the burden in this
regard. Although duly notified, he never attended the hearings to rebut the serious charges
brought against him, irresistibly suggesting that the charges are true.

Undoubtedly, respondent's act of leaving his wife and 12 children to cohabit and have children
with another woman constitutes grossly immoral conduct. And to add insult to injury, there seems
to be little attempt on the part of respondent to be discreet about his liaison with the other
woman.

As we have already ruled, disbarment is warranted against a lawyer who abandons his lawful wife
to maintain an illicit relationship with another woman who had borne him a child.[12] In the instant
case, respondent's grossly immoral conduct compels the Court to wield its power to disbar. The
penalty is most appropriate under the premises.
DOMINADOR P. BURBE, COMPLAINANT, VS. ATTY. ALBERTO C. MAGULTA, RESPONDENT.
The Courts Ruling

We agree with the Commissions recommendation.

Main Issue:
Misappropriation of Clients Funds

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

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

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

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

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

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

Likewise, a lawyer-client relationship exists notwithstanding the close personal relationship

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

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

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

The Practice of Law -- a

Profession, Not a Business

In this day and age, members of the bar often forget that the practice of law is a profession and
not a business.[11] Lawyering is not primarily meant to be a money-making venture, and law
advocacy is not a capital that necessarily yields profits.[12] The gaining of a livelihood is not a
professional but a secondary consideration.[13] Duty to public service and to the administration of
justice should be the primary consideration of lawyers, who must subordinate their personal
interests or what they owe to themselves. The practice of law is a noble calling in which
emolument is a byproduct, and the highest eminence may be attained without making much
money.[14]

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

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

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

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

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

ROSA F. MERCADO, COMPLAINANT, VS. ATTY. JULITO D. VITRIOLO, RESPONDENT.

In engaging the services of an attorney, the client reposes on him special powers of trust and
confidence. Their relationship is strictly personal and highly confidential and fiduciary. The relation
is of such delicate, exacting and confidential nature that is required by necessity and public
interest.[15] Only by such confidentiality and protection will a person be encouraged to repose his
confidence in an attorney. The hypothesis is that abstinence from seeking legal advice in a good
cause is an evil which is fatal to the administration of justice.[16] Thus, the preservation and
protection of that relation will encourage a client to entrust his legal problems to an attorney,
which is of paramount importance to the administration of justice.[17] One rule adopted to serve
this purpose is the attorney-client privilege: an attorney is to keep inviolate his client's secrets or
confidence and not to abuse them.[18] Thus, the duty of a lawyer to preserve his client's secrets
and confidence outlasts the termination of the attorney-client relationship,[19] and continues even
after the client's death.[20] It is the glory of the legal profession that its fidelity to its client can be
depended on, and that a man may safely go to a lawyer and converse with him upon his rights or
supposed rights in any litigation with absolute assurance that the lawyer's tongue is tied from ever
disclosing it.[21] With full disclosure of the facts of the case by the client to his attorney, adequate
legal representation will result in the ascertainment and enforcement of rights or the prosecution
or defense of the client's cause.

Now, we go to the rule on attorney-client privilege. Dean Wigmore cites the factors essential to
establish the existence of the privilege, viz:
(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his
capacity as such, (3) the communications relating to that purpose, (4) made in
confidence (5) by the client, (6) are at his instance permanently protected (7) from
disclosure by himself or by the legal advisor, (8) except the protection be waived.[22]

In fine, the factors are as follows:

(1) There exists an attorney-client relationship, or a prospective attorney-client relationship, and it

is by reason of this relationship that the client made the communication.

Matters disclosed by a prospective client to a lawyer are protected by the rule on privileged
communication even if the prospective client does not thereafter retain the lawyer or the latter
declines the employment.[23] The reason for this is to make the prospective client free to discuss
whatever he wishes with the lawyer without fear that what he tells the lawyer will be divulged or
used against him, and for the lawyer to be equally free to obtain information from the prospective
client.[24]

On the other hand, a communication from a (prospective) client to a lawyer for some purpose
other than on account of the (prospective) attorney-client relation is not privileged. Instructive is
the case of Pfleider v. Palanca,[25] where the client and his wife leased to their attorney a
1,328-hectare agricultural land for a period of ten years. In their contract, the parties agreed,
among others, that a specified portion of the lease rentals would be paid to the client-lessors, and
the remainder would be delivered by counsel-lessee to client's listed creditors. The client alleged
that the list of creditors which he had "confidentially" supplied counsel for the purpose of carrying
out the terms of payment contained in the lease contract was disclosed by counsel, in violation of
their lawyer-client relation, to parties whose interests are adverse to those of the client. As the
client himself, however, states, in the execution of the terms of the aforesaid lease contract
between the parties, he furnished counsel with the "confidential" list of his creditors. We ruled that
this indicates that client delivered the list of his creditors to counsel not because of the
professional relation then existing between them, but on account of the lease agreement. We then
held that a violation of the confidence that accompanied the delivery of that list would partake
more of a private and civil wrong than of a breach of the fidelity owing from a lawyer to his client.

(2) The client made the communication in confidence.

The mere relation of attorney and client does not raise a presumption of confidentiality.[26] The
client must intend the communication to be confidential.[27]

A confidential communication refers to information transmitted by voluntary act of disclosure

between attorney and client in confidence and by means which, so far as the client is aware,
discloses the information to no third person other than one reasonably necessary for the
transmission of the information or the accomplishment of the purpose for which it was given.[28]

Our jurisprudence on the matter rests on quiescent ground. Thus, a compromise agreement
prepared by a lawyer pursuant to the instruction of his client and delivered to the opposing party,
[29] an offer and counter-offer for settlement,[30] or a document given by a client to his counsel
not in his professional capacity,[31] are not privileged communications, the element of
confidentiality not being present.[32]

(3) The legal advice must be sought from the attorney in his professional capacity.[33]

The communication made by a client to his attorney must not be intended for mere information,
but for the purpose of seeking legal advice from his attorney as to his rights or obligations. The
communication must have been transmitted by a client to his attorney for the purpose of seeking
legal advice.[34]

If the client seeks an accounting service,[35] or business or personal assistance,[36] and not legal
advice, the privilege does not attach to a communication disclosed for such purpose.

Applying all these rules to the case at bar, we hold that the evidence on record fails to
substantiate complainant's allegations. We note that complainant did not even specify the alleged
communication in confidence disclosed by respondent. All her claims were couched in general
terms and lacked specificity. She contends that respondent violated the rule on privileged
communication when he instituted a criminal action against her for falsification of public
documents because the criminal complaint disclosed facts relating to the civil case for annulment
then handled by respondent. She did not, however, spell out these facts which will determine the
merit of her complaint. The Court cannot be involved in a guessing game as to the existence of
facts which the complainant must prove.

Indeed, complainant failed to attend the hearings at the IBP. Without any testimony from the
complainant as to the specific confidential information allegedly divulged by respondent without
her consent, it is difficult, if not impossible to determine if there was any violation of the rule on
privileged communication. Such confidential information is a crucial link in establishing a breach of
the rule on privileged communication between attorney and client. It is not enough to merely
assert the attorney-client privilege.[37] The burden of proving that the privilege applies is placed
upon the party asserting the privilege.[38]

IN VIEW WHEREOF, the complaint against respondent Atty. Julito D. Vitriolo is hereby DISMISSED
for lack of merit.

CITIBANK, N.A., PETITIONER, VS. NATIONAL LABOR RELATIONS COMMISSION AND

ROSITA TAN PARAGAS, RESPONDENT.
As for her second MR, respondent outlines her arguments in paragraphs 7.1 to 7.4 of her motion
for leave, as follows:
7.1. Petitioner's second motion for extension of time and the petition for review on
certiorari were already denied with finality in the Court's Resolution dated January 14,
2004;

7.2. Private respondent['s] claim for her retirement benefits was included in her
position paper;

7.3. Both the Labor Arbiter's Decision dated June 29, 1998 and the NLRC Resolution
dated October 24, 2004 did not make any findings of serious misconduct allegedly
committed by the private respondent;

7.4. Petitioner failed to comply with Section 3, Rule 45 of the Revised Rules of
Procedure, Revised Circular No. 1-88 and Supreme Court Circular No. 19-91;

7.5. Petitioner's counsel failed to indicate his attorney' roll number in all the documents
he filed in Court in violation of Bar Matter No. 1132 of the Supreme Court.[3]
Respondent correctly argues that the prohibition against second MRs is not absolute, there being
instances where the same are allowed in the interest of justice. Indeed, this was the reason why
the second MR of petitioner was granted by this Court, by Resolution of August 17, 2005, paving
the way to the reinstatement of its petition which was eventually decided in its favor. In that
Resolution, the Court found ththat extraordinarily persuasive reasons for granting ns for granting
petitioner's second second MR were present; that the petition appearthat the petition appeared
meritorious on its face; and that the ends of and that the ends of substantial justice would be
better served by allowing the motion.[4] would be better served by the allowing the motion.

With regard to respondent's Motion for Leave and second MR, she has not shown any
extraordinarily persuasive reasons, let alone merely persuasive reasons, for this Court to grant the
same.

Respondent's above-quoted arguments in paragraphs 7.1 and 7.4 in her Motion for Leave both
involve procedural issues which were already addressed by this Court in its Resolution of August
17, 2005 granting petitioner's second MR. Novelty Philippines, Inc. v. CA[5] further reinforces the
Court's line of reasoning taken in the Resolution - where the merits of the case were given
precedence over technicalities, viz:
The policy of our judicial system is to encourage full adjudication of the merits of an
appeal. In the exercise of its equity jurisdiction, this Court may reverse the dismissal of
appeals that are grounded merely on technicalities. Moreover, procedural niceties
should be avoided in labor cases in which the provisions of the Rules of Court are
applied only in a suppletory manner. Indeed, rules of procedure may be relaxed to
relieve a part of an injustice not commensurate with the degree of noncompliance with
the process required.

The foregoing judicial policy acquires greater significance where there has been subsequent
compliance with the requirements of the rules, as in this case in which petitioner has submitted
the Special Power of Attorney together with its Motion for Reconsideration. (Underscoring supplied)

As for respondent's above-quoted arguments under paragraphs 7.2 and 7.3, these were already
extensively discussed in the Decision of February 6, 2008.

Finally, the defect stated in above-quoted paragraph 7.5 of respondent's Motion for Leave, while
true up until petitioner's filing of MANIFESTATION AND MOTION dated February 24, 2004, has since
been remedied when petitioner filed its Reply dated January 10, 2006 wherein its counsels' Roll
Numbers were indicated. As clarified in D.O. Plaza Management Corp. v. Co-owners Heirs of Andres
Atega,[6] the requirement to indicate counsel's Roll Number was intended to protect the public by
making it easier to detect impostors who represent themselves as members of the Bar and to help
lawyers keep track of their Roll of Attorneys Number. It was not meant to be a ground to dismiss an
action or expunge from the records any pleading in which such Roll of Attorneys Number was not
indicated.

There being then no extraordinarily persuasive reason advanced by respondent for the Court to
depart from the general rule that second MRs are prohibited, respondent's motions fail.

WHEREFORE, respondent's Motion for Leave to Admit (Attached Second Motion for
Reconsideration) and SECOND MOTION FOR RECONSIDERATION, both dated July 22, 2008, are
DENIED.

RENE RAMOS, et al VS. SPOUSES ANTONIO T. LIM AND SUSPENE LIM

In a very real sense, Atty. Datukon's "MANIFESTATION" was an alerting medium that a final ruling
has been issued by the trial court, which should have thus prodded Atty. Estaniel and any
prudent counsel for that matter - to act accordingly. Canon 18 of the Code of Professional
Responsibility imposes upon a lawyer the duty to "serve his client with competence and diligence".
Subsumed in this imposition, which commences from the time a lawyer is retained until his
effective release from the case or final disposition of the whole subject of the litigation, [15] is the
duty to safeguard his client's interest with the vigilance and attention of a good father of the
family.[16] In line with his duty as defined in Canon 18 of the Code, it behooved Atty. Estaniel,
upon receipt of Atty. Datukon's manifestation, to posthaste inquire from the trial court or even
from Atty. Datukon himself, about the status of petitioner's case since the manifestation, a copy of
which he has thus been furnished, already made specific reference to a motion for execution filed
by the counsel of his clients' adversary. Atty. Estaniel must thus be held to task for his failure to
exercise due diligence in the discharge of his duties as counsel. Petitioners, too, must suffer the
consequence of such failure because a client is bound by the conduct, negligence or mistakes of
his counsel.[17]

To be sure, the above disposition is not without jurisprudential support. In Arambulo vs. Court of
Appeals [18] involving an otherwise defective service of notice to perfect an appeal effected on a
previous counsel instead of the new counsel of record, this Court [19] upheld the dismissal of the
appealed case for the new counsel's neglect in inquiring, in breach of his obligation to serve his
client with diligence, as to the status of the appeal. Some pertinent excerpts of the holding in
Arambulo:
"Nevertheless, the appeal can be dismissed, not on the basis of the respondent Court
of Appeals' error but on a different ground for which Atty. Pineda must answer. As the
new counsel for the petitioners, it was incumbent upon him, consistent with his duty to
serve his client with competence and diligence, to inquire either from the trial court or
the appellate court about the status of the appeal since he had not received any notice
to pay the docketing and other fees despite the lapse of several months from the time
he entered his appearance. While he had every reason to expect that the office of the
Clerk of Court of the Court of Appeals would comply with . . . [the rules] on notice to the
parties to pay the docketing and other fees, his failure to receive the notice for so long
a time should have alarmed him to the possibility that something must have gone awry
somewhere.

xxx As we see it then, the failure of Atty. Pineda and the petitioners to exercise due
diligence with respect to the appeal was either done deliberately to delay the execution
of judgment, which we cannot tolerate, or caused by negligence, in which case the
settled rule that the negligence of counsel binds the client should be applied".

Like Atty. Pineda in Arambulo, Atty. Estaniel in the present case failed to measure up to the
minimum standards of care and diligence expected of him in the prosecution of his clients' cause.
As it were, Atty. Pineda's clients in Arambulo were prejudiced by his failings. We see no reason why
petitioners as Atty. Estaniel's clients should be treated differently.

WHEREFORE, the instant petition is DENIED.

JOHN HILARIO Y SIBAL, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.

While as a general rule, negligence of counsel may not be condoned and should bind the client,
[23] the exception is when the negligence of counsel is so gross, reckless and inexcusable that the
client is deprived of his day in court.[24] In Aguilar v. Court of Appeals,[25] we held:
x x x Losing liberty by default of an insensitive lawyer should be frowned upon despite
the fiction that a client is bound by the mistakes of his lawyer. The established
jurisprudence holds:

xxxx

The function of the rule that negligence or mistake of counsel in procedure is imputed
to and binding upon the client, as any other procedural rule, is to serve as an
instrument to advance the ends of justice. When in the circumstances of each case the
rule desert its proper office as an aid to justice and becomes its great hindrance and
chief enemy, its rigors must be relaxed to admit exceptions thereto and to prevent a
manifest miscarriage of justice.
 xxxx

The court has the power to except a particular case from the operation of the rule
whenever the purposes of justice require it.

xxxx

If the incompetence, ignorance or inexperience of counsel is so great and the error

committed as a result thereof is so serious that the client, who otherwise has a good
cause, is prejudiced and denied his day in court, the litigation may be reopened to give
the client another chance to present his case. In a criminal proceeding, where certain
evidence was not presented because of counsel's error or incompetence, the defendant
in order to secure a new trial must satisfy the court that he has a good defense and
that the acquittal would in all probability have followed the introduction of the omitted
evidence. What should guide judicial action is that a party be given the fullest
opportunity to establish the merits of his action or defense rather than for him to lose
life, liberty, honor or property on mere technicalities.[26]

The PAO lawyer, Atty. Rivera, filed his Withdrawal of Appearance on September 30, 2002, almost
three months before the RTC rendered its assailed Order dated December 13, 2002, dismissing the
petition for relief. The RTC had ample time to require the PAO lawyer to comment on the petition
for relief from judgment, before issuing the questioned Order. Had the RTC done so, there would
have been a factual basis for the RTC to determine whether or not the PAO lawyer was grossly
negligent; and eventually, whether the petition for relief from judgment is meritorious. If there
was no instruction from petitioner to file an appeal, then there was no obligation on the part of the
PAO lawyer to file an appeal as stated in the PAO Memorandum Circular and negligence could not
be attributed to him. However, if indeed there was such an instruction to appeal but the lawyer
failed to do so, he could be considered negligent.

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

The RTC faulted petitioner for claiming in his petition for relief that he instructed his counsel to file
the necessary motion for reconsideration or notice of appeal; while in his affidavit of merit, he
claimed to have told his counsel to simply file a notice of appeal. We do not find such
circumstance sufficient ground to dismiss the petition considering that he filed the petition for
relief unassisted by counsel.

In all criminal prosecutions, the accused shall have the right to appeal in the manner prescribed by
law. The importance and real purpose of the remedy of appeal has been emphasized in Castro v.
Court of Appeals[27] where we ruled that an appeal is an essential part of our judicial system and
trial courts are advised to proceed with caution so as not to deprive a party of the right to appeal
and instructed that every party- litigant should be afforded the amplest opportunity for the proper
and just disposition of his cause, freed from the constraints of technicalities. While this right is
statutory, once it is granted by law, however, its suppression would be a violation of
due process, a right guaranteed by the Constitution. Thus, the importance of finding out
whether petitioner's loss of the right to appeal was due to the PAO lawyer's negligence and not at
all attributed to petitioner.

However, we cannot, in the present petition for review on certiorari, make a conclusive finding that
indeed there was excusable negligence on the part of the PAO lawyer which prejudiced petitioner's
right to appeal his conviction. To do so would be pure speculation or conjecture. Therefore, a
remand of this case to the RTC for the proper determination of the merits of the petition for relief
from judgment is just and proper.
WHEREFORE, the petition is GRANTED. The Resolutions dated August 19, 2003 and November
28, 2003 of the Court of Appeals are REVERSED and SET ASIDE. The Order dated December 13,
2002 of the Regional Trial Court of Quezon City, Branch 76, is SET ASIDE. The RTC is hereby
ordered to require Atty. Raul Rivera of the Public Attorney's Office to file his comment on the
petition for relief from judgment filed by petitioner, hold a hearing thereon, and thereafter rule on
the merits of the petition for relief from judgment, with dispatch.

LAND BANK OF THE PHILIPPINES, PETITIONER, VS. PAMINTUAN DEVELOPMENT CO.,

REPRESENTED BY MARIANO PAMINTUAN, JR., RESPONDENT.
We find that the DARAB gravely abused its discretion in holding that Attys. Montarde and Mesa
lacked the authority to file a notice of appeal in behalf of petitioner. Section 21, Rule 138 of the
Rules of Court provides:
SEC. 21. Authority of attorney to appear. - An attorney is presumed to be properly
authorized to represent any cause in which he appears, and no written power of
attorney is required to authorize him to appear in court for his client, but the presiding
judge may, on motion of either party and on reasonable grounds therefor being shown,
require any attorney who assumes the right to appear in a case to produce or prove the
authority under which he appears, and to disclose, whenever pertinent to any issue,
the name of the person who employed him, and may thereupon make such order as
justice requires. An attorney wilfully appearing in court for a person without being
employed, unless by leave of the court, may be punished for contempt as an officer of
the court who has misbehaved in his official transactions.

The presumption in favor of the counsel's authority to appear in behalf of a client is a strong one.
[13] A lawyer is not even required to present a written authorization from the client. In fact, the
absence of a formal notice of entry of appearance will not invalidate the acts performed by the
counsel in his client's name.[14] However, the court, on its own initiative or on motion of the other
party require a lawyer to adduce authorization from the client.

In the case at bar, the filing of a notice of entry of appearance by Attys. Montarde and Mesa, gave
rise to the presumption that they have the authority to file the notice of appeal in behalf of
petitioner. When their authority was challenged, they presented the SPA executed by Gilda E. Pico,
Executive Vice President of LANDBANK authorizing them to represent petitioner; and the two
memoranda of Atty. Danilo B. Beramo, Department Manager and Head, CARP Legal Services
Department, requesting Atty. Montarde to file a notice of appeal. These documents are sufficient
proof of their authority to represent petitioner's cause. The doubt entertained by the DARAB as to
when the SPA and memoranda were executed is of no consequence in view of petitioner's vigorous
assertion that it authorized said lawyers to file a notice of appeal. Indeed, even an unauthorized
appearance of an attorney may be ratified by the client either expressly[15] or impliedly.[16]
Ratification retroacts to the date of the lawyer's first appearance and validates the action taken by
him.[17]

The DARAB's assertion that Attys. Montarde and Mesa cannot validly represent petitioner because
there was no proper substitution of counsels, lacks merit. Petitioner never intended to replace its
counsel of record, the law firm Piczon, Beramo & Associates. Though not specified in the notice,
Attys. Montarde and Mesa entered their appearance as collaborating counsels.

Likewise, the Court of Appeals erroneously applied the doctrine laid down in Sublay v. National
Labor Relations Commission,[18] in dismissing the petition. In Sublay, it was held that a
substitution cannot be presumed from the mere filing of a notice of appearance of a new lawyer
and that the representation of the first counsel of record continuous until a formal notice to change
counsel is filed with the court.[19] Thus, absent a formal notice of substitution, all lawyers who
appeared before the court or filed pleadings in behalf of the client are considered counsels of the
latter. All acts performed by them are deemed to be with the client's consent.

The case of Ong Ching v. Ramolete,[20] is on all fours with the instant controversy. The trial court
therein held that the period to appeal had already lapsed rendering the assailed decision final and
executory because petitioner's motion for reconsideration, though presented within the
reglementary period, is without legal effect having been filed by a lawyer other than petitioner's
counsel of record. It disregarded petitioner's written authorization belatedly filed by said new
lawyer as the same was not appended to the motion for reconsideration previously filed. In
debunking the ruling of the trial court, we stressed that the new counsel who filed the motion for
reconsideration in behalf of the client is presumed to be authorized even if he filed no formal
notice of entry of appearance. Hence, said motion effectively tolled the running of the period to
appeal. As explained by the Court:
The present case, however, does not involve a substitution of attorneys, but merely the
employment by petitioner of an additional counsel. True it is, as claimed by
respondents, that the motion for reconsideration filed by Atty. Hermosisima gives no
indication that he was presenting his motion in collaboration with Atty. Vasquez; but
neither would it indicate that by his filing of the pleading in the case, Atty. Hermosisima
was replacing Atty. Vasquez as counsel for petitioner. In law it is assumed prima facie
that every attorney who appears in court does so with sufficient authority. The fact that
a second attorney enters an appearance on behalf of a litigant does not authorize a
presumption that the authority of the first attorney has been withdrawn. There is no
question that a party may have two or more lawyers working in collaboration as his
counsel in a given litigation. Thus in the case at bar the certificate dated May 16, 1972,
executed by Atty. Vasquez, is to the effect that he, with the consent and authority of
petitioner (who signified his conformity in writing) was authorizing Atty. Hermosisima to
collaborate with him in the case due to his ill health. While the said certificate was not
attached to the motion for reconsideration on May 17, 1972, but was presented in court
rather belatedly on June 16, 1972 as an annex to petitioner's "Rejoinder to Opposition
to Motion for Reconsideration," respondents have not shown that the recitals of fact
contained therein did not reflect the truth. At any rate, this case is different from U.S. v.
Borromeo, Fojas, et al. v. Navarro, Ramos v. Potenciano, Baquiran v. Court of Appeals.
Here petitioner's counsel, Atty. Vasquez, not only affirmed his continued connection
with the case, but also explained Atty. Hermosisima's appearance as collaborating
counsel. While it may be desirable in the interest of an orderly conduct of judicial
proceedings, that a counsel for a party should file with the court his formal written
appearance in the case, before filing a pleading therein, or mention in said pleading
that he is submitting the same in collaboration with the counsel of record, the mere
circumstance that such acts were not done does not warrant the conclusion that the
pleading filed by such counsel has no legal effect whatsoever.

It is evident therefore that the DARAB gravely abused its discretion in denying due course to the
notice of appeal seasonably filed by Attys. Montarde and Mesa, the duly authorized counsel of
petitioner. In the same vein, the affirmance by the Court of Appeals of the assailed order of the
DARAB is a clear disregard of the oft repeated principle that courts should not resort to a rigid
application of the rules where the end result would frustrate the just, speedy and inexpensive
determination of the controversy.[21]

WHEREFORE, the petition is GRANTED and the April 15, 2005 Decision of the Court of Appeals
dismissing the petition in CA-G.R. SP No. 85843, is REVERSED and SET ASIDE. The Department
of Agrarian Reform Adjudication Board is DIRECTED to give due course to petitioner's Notice of
Entry of Appearance and the Notice of Appeal.

MELCHOR L. LAGUA, PETITIONER, VS. THE HON. COURT OF APPEALS AND PEOPLE OF
THE PHILIPPINES, RESPONDENT.
The rationale for this rule is reiterated in the recent case Bejarasco v. People:
The general rule is that a client is bound by the counsels acts, including even mistakes
in the realm of procedural technique. The rationale for the rule is that a counsel,
once retained, holds the implied authority to do all acts necessary or, at
least, incidental to the prosecution and management of the suit in behalf of
his client, such that any act or omission by counsel within the scope of the
 authority is regarded, in the eyes of the law, as the act or omission of the
client himself.

It is the clients duty to be in contact with his lawyer from time to time in
order to be informed of the progress and developments of his case; hence, to
merely rely on the bare reassurances of his lawyer that everything is being taken care
of is not enough.[13] (Emphasis supplied.)

In Tan v. Court of Appeals, the Court explained:

As clients, petitioners should have maintained contact with their counsel from time to
time, and informed themselves of the progress of their case, thereby exercising that
standard of care which an ordinarily prudent man bestows upon his business.

Even in the absence of the petitioners negligence, the rule in this jurisdiction is that a
party is bound by the mistakes of his counsel. In the earlier case of Tesoro v. Court of
Appeals, we emphasized

It has been repeatedly enunciated that a client is bound by the action of

his counsel in the conduct of a case and cannot be heard to complain that
the result might have been different had he proceeded differently. A client is
bound by the mistakes of his lawyer. If such grounds were to be admitted as
reasons for reopening cases, there would never be an end to a suit so long
as new counsel could be employed who could allege and show that prior
counsel had not been sufficiently diligent or experienced or learned.

Thus, with the ordinary remedy of appeal lost through the petitioners own fault, we
affirm that no reversible error was committed in the dismissal of the petition by the
appellate court.[14]

Petitioner was granted bail, and he had all the time to contact his counsel or follow up on the
appeal himself. He is similarly responsible for procuring the services of new counsel after having
been told of Atty. Quimpos withdrawal. Yet he offered no explanation why it took him so long to
apprise Atty. Barrientos of the case, or why they had repeatedly failed to comply with the CAs
Orders after several extensions. As he has lost the ordinary remedy of appeal because of his own
laxity, we cannot allow him to haphazardly take advantage of the remedy of certiorari.

The Court cannot tolerate habitual failure to follow the procedural rules, which are indispensable
for the orderly and speedy disposition of justice. Otherwise these rules would be rendered useless.
[15] In Polintan v. People, the Court of Appeals gave the petitioner therein a total of 75 days to
submit his Appellants Brief, but he failed to do so. In that case, the accused Polintan filed a Very
Urgent Ex-Parte Motion to Admit Appellants Brief. This Court affirmed the CA Resolution declaring
his appeal abandoned, after finding his excuses too flimsy to warrant reversal.

In the present case, accused Lagua was given more time, not only to file his Appellants Brief, but
also to secure new counsel to adequately prepare the appeal. The CA issued two Show Cause
Orders and two Resolutions declaring the appeal as abandoned. Despite these issuances, his
second Motion for Reconsideration was filed 18 days after his receipt of the second and final CA
Resolution. To our mind, this delay is indicative of sheer laxity and indifference on his part, for
which he has lost the statutory right of appeal. Even during the intervening period after counsel
has withdrawn, litigants are expected to be vigilant and conscious of the status of their cases, viz:
The appellate court committed no error therefore in dismissing the appeal. Petitioners-
appellants have shown no valid and justifiable reason for their inexplicable failure to file
their brief and have only themselves to blame for their counsels utter inaction and
 gross indifference and neglect in not having filed their brief for a year since receipt of
due notice to file the same. They could not even claim ignorance of the appellate
courts notice to file brief since it had required withdrawing counsel Valente to secure
their written conformity before granting his withdrawal as counsel, and certainly they
must have ascertained from him as well as new counsel the status of their appeal
which accounts for Atty. Valentes repeated prayers in his two motions for withdrawal
for the granting of sufficient time for new counsel to file the brief. They had almost a
year thereafter to make sure that their new counsel did attend to their appeal and did
file the brief.[16]

In Estate of Felomina G. Macadangdang v. Gaviola,[17] the Court made a clear finding of

negligence on the part of the lawyer handling the petitioners case, but nevertheless affirmed the
denial of the appeal. It confirmed that the petitioner was bound by his counsels negligence. It
ruled that the right to appeal is not a natural right or a part of due process, but is merely a
statutory privilege that may be exercised only in the manner prescribed by the law.

Neither can we deem petitioner Laguas Motion for Reconsideration with Motion to Admit
Appellants Brief as substantial compliance with the procedural requirement. In Cario v. Espinoza,
[18] the appellate court rightly disallowed the submission of the Appellants Brief after a delay of
seven months. In this case, it took petitioner almost two years from 26 February 2004 (after the
CA gave him a second non-extendible period of 45 days) to finally submit his Appellants Brief on
19 December 2005.

Lastly, it is erroneous for petitioner to declare that there would be no prejudice to the People if his
appeal is reinstated.[19] The judgment of conviction having attained finality, respondent is now
entitled to execution as a matter of right. This Court has recently declared:
Nothing is more settled in law than that once a judgment attains finality it thereby
becomes immutable and unalterable. The enforcement of such judgment should not be
hampered or evaded, for the immediate enforcement of the parties rights, confirmed
by final judgment, is a major component of the ideal administration of justice. This is
the reason why we abhor any delay in the full execution of final and executory
decisions. Thus, a remedy intended to frustrate, suspend, or enjoin the enforcement of
a final judgment must be granted with caution and upon a strict observance of the
requirements under existing laws and jurisprudence.[20] x x x.

WHEREFORE, the Petition is DISMISSED. The assailed Resolutions issued by the Court of Appeals
on 25 November 2005 and 17 May 2006 in CA-G.R. CR No. 27423 are hereby AFFIRMED.

BUILDING CARE CORPORATION / LEOPARD SECURITY & INVESTIGATION AGENCY AND/OR

RUPERTO PROTACIO, PETITIONERS, VS. MYRNA MACARAEG, RESPONDENT.
The Court cannot sustain the CA's Decision.

It should be emphasized that the resort to a liberal application, or suspension of the application of
procedural rules, must remain as the exception to the well-settled principle that rules must be
complied with for the orderly administration of justice. In Marohomsalic v. Cole,[10] the Court
stated:
While procedural rules may be relaxed in the interest of justice, it is well-settled that
these are tools designed to facilitate the adjudication of cases. The relaxation of
procedural rules in the interest of justice was never intended to be a license
for erring litigants to violate the rules with impunity. Liberality in the
interpretation and application of the rules can be invoked only in proper cases and
under justifiable causes and circumstances. While litigation is not a game of
technicalities, every case must be prosecuted in accordance with the
prescribed procedure to ensure an orderly and speedy administration of
 justice.[11]

The later case of Daikoku Electronics Phils., Inc. v. Raza,[12] further explained that:
To be sure, the relaxation of procedural rules cannot be made without any
valid reasons proffered for or underpinning it. To merit liberality, petitioner
must show reasonable cause justifying its non-compliance with the rules and
must convince the Court that the outright dismissal of the petition would
defeat the administration of substantial justice. x x x The desired leniency
cannot be accorded absent valid and compelling reasons for such a procedural lapse.
x x x

We must stress that the bare invocation of the interest of substantial justice line is
not some magic want that will automatically compel this Court to suspend procedural
rules. Procedural rules are not to be belittled, let alone dismissed simply
because their non-observance may have resulted in prejudice to a party's
substantial rights. Utter disregard of the rules cannot be justly rationalized
by harping on the policy of liberal construction.[13]

In this case, the justifications given by the CA for its liberality by choosing to overlook the belated
filing of the appeal are, the importance of the issue raised, i.e., whether respondent was illegally
dismissed; and the belief that respondent should be afforded the amplest opportunity for the
proper and just determination of his cause, free from the constraints of technicalities,[14]
considering that the belated filing of respondent's appeal before the NLRC was the fault of
respondent's former counsel. Note, however, that neither respondent nor her former counsel gave
any explanation or reason citing extraordinary circumstances for her lawyer's failure to abide by
the rules for filing an appeal. Respondent merely insisted that she had not been remiss in
following up her case with said lawyer.

It is, however, an oft-repeated ruling that the negligence and mistakes of counsel bind the client.
A departure from this rule would bring about never-ending suits, so long as lawyers could allege
their own fault or negligence to support the clients case and obtain remedies and reliefs already
lost by the operation of law.[15] The only exception would be, where the lawyer's gross
negligence would result in the grave injustice of depriving his client of the due process of law.[16]
In this case, there was no such deprivation of due process. Respondent was able to fully present
and argue her case before the Labor Arbiter. She was accorded the opportunity to be heard. Her
failure to appeal the Labor Arbiter's Decision cannot, therefore, be deemed as a deprivation of her
right to due process. In Heirs of Teofilo Gaudiano v. Benemerito,[17] the Court ruled, thus:
The perfection of an appeal within the period and in the manner prescribed by law is
jurisdictional and non-compliance with such legal requirements is fatal and has the
effect of rendering the judgment final and executory. The limitation on the period of
appeal is not without reason. They must be strictly followed as they are considered
indispensable to forestall or avoid unreasonable delays in the administration of justice,
to ensure an orderly discharge of judicial business, and to put an end to controversies.
xxx

xxxx

The right to appeal is not a natural right or part of due process; it is merely a
statutory privilege and may be exercised only in the manner and in
accordance with the provisions of law. Thus, one who seeks to avail of the
right to appeal must strictly comply with the requirements of the rules, and
failure to do so leads to the loss of the right to appeal.[18]
In Ocampo v. Court of Appeals (Former Second Division),[19] the Court declared that:
x x x we cannot condone the practice of parties who, either by their own or
their counsel's inadvertence, have allowed a judgment to become final and
executory and, after the same has become immutable, seek iniquitous ways
to assail it. The finality of a decision is a jurisdictional event which cannot be made to
depend on the convenience of the parties.[20]

Clearly, allowing an appeal, even if belatedly filed, should never be taken lightly. The judgment
attains finality by the lapse of the period for taking an appeal without such appeal or motion for
reconsideration being filed.[21] In Ocampo v. Court of Appeals (Former Second Division),[22] the
Court reiterated the basic rule that when a party to an original action fails to question an adverse
judgment or decision by not filing the proper remedy within the period prescribed by law, he loses
the right to do so, and the judgment or decision, as to him, becomes final and binding.[23] The
Decision of the Labor Arbiter, therefore, became final and executory as to respondent when she
failed to file a timely appeal therefrom. The importance of the concept of finality of judgment
cannot be gainsaid. As elucidated in Pasiona, Jr. v. Court of Appeals,[24] to wit:
The Court re-emphasizes the doctrine of finality of judgment. In Alcantara v. Ponce, the
Court, citing its much earlier ruling in Arnedo v. Llorente, stressed the importance of
said doctrine, to wit:

x x x controlling and irresistible reasons of public policy and of sound practice in the
courts demand that at the risk of occasional error, judgments of courts determining
controversies submitted to them should become final at some definite time fixed by
law, or by a rule of practice recognized by law, so as to be thereafter beyond the
control even of the court which rendered them for the purpose of correcting
errors of fact or of law, into which, in the opinion of the court it may have fallen. The
very purpose for which the courts are organized is to put an end to controversy, to
decide the questions submitted to the litigants, and to determine the respective rights
of the parties. With the full knowledge that courts are not infallible, the litigants
submit their respective claims for judgment, and they have a right at some
time or other to have final judgment on which they can rely as a final
disposition of the issue submitted, and to know that there is an end to the
litigation.

xxxx

It should also be borne in mind that the right of the winning party to enjoy
the finality of the resolution of the case is also an essential part of public
policy and the orderly administration of justice. Hence, such right is just as
weighty or equally important as the right of the losing party to appeal or
seek reconsideration within the prescribed period.[25]

When the Labor Arbiter's Decision became final, petitioners attained a vested right to said
judgment. They had the right to fully rely on the immutability of said Decision. In Sofio v.
Valenzuela,[26] it was amply stressed that:
The Court will not override the finality and immutability of a judgment based only on
the negligence of a partys counsel in timely taking all the proper recourses from the
judgment. To justify an override, the counsels negligence must not only be gross but
must also be shown to have deprived the party the right to due process.

n sum, the Court cannot countenance relaxation of the rules absent the showing of extraordinary
circumstances to justify the same. In this case, no compelling reasons can be found to convince
this Court that the CA acted correctly by according respondent such liberality.
IN VIEW OF THE FOREGOING, the Petition is GRANTED. The Decision of the Court of Appeals
dated March 24, 2011, and its Resolution dated August 19, 2011 in CA-G.R. SP No. 114822 are
hereby SET ASIDE, and the Decision of the National Labor Relations Commission in NLRC-LAC No.
07-001892-09 (NLRC Case No. NCR-09-12628-08), ruling that the Decision of the Labor Arbiter has
become final and executory, is REINSTATED.

JAIME T. TORRES, PETITIONER, VS. CHINA BANKING CORPORATION, RESPONDENT

The petition lacks merit.

It is settled rule that the mistake of a counsel binds the client.[30] It is only in case of
gross or palpable negligence of counsel when the courts must step in and accord relief
to a client who suffered thereby.[31]

In Saint Louis University v. Cordero,[32] the Court held:

The doctrinal rule is that the negligence of counsel binds the client.
Otherwise, there would never be an end to a suit so long as a new counsel
could be employed who would allege and show that the prior counsel had not
been sufficiently diligent, experienced, or learned.

To fall within the exceptional circumstances such as those found in Amil v. Court
Appeals relied upon by the petitioners, it must be shown that the negligence of counsel
must be so gross that the client is deprived of his day in court, the result of which is
that he is deprived of his property without due process of law. Thus, where "a party was
given the opportunity to defend [its] interests in due course, [it] cannot be said to have
been denied due process of law, for this opportunity to be heard is the very essence of
due process."

In the Amil case, the petitioner therein was declared in default for failure of his counsel
to file an answer within the reglementary period. The case was heard ex-parte, and
judgment was rendered in favor of the respondents. Petitioner's counsel further failed
to take any action to protect the interests of the petitioner in subsequent proceedings
by filing an opposition to the motion to declare him in default or by moving to set aside
the order of default. The petitioner therein was, therefore, deemed to have been
deprived of his chance to present his side and to flesh out his arguments.

In contrast, the instant case underwent a full-blown trial. Both parties were adequately
heard, and all issues were ventilated before the decision was promulgated. All the
necessary pleadings were filed by petitioners' counsel to protect their interests when
the case was still before the trial court. In fact, when a decision was rendered,
petitioners' counsel even filed an Opposition to respondents' motion for
reconsideration. Unlike in Amil, herein petitioners were not deprived of their day in
court.[33]

Similarly, in this case, petitioner was not deprived of his day in court, because both parties were
heard in a full-blown trial and, thereafter, a decision was rendered by the trial court, which
decision was appealed by petitioner to the Court of Appeals. The Court of Appeals modified the
decision of the trial court, correctly holding that Article 78 of the General Banking Act applies in
the determination of the redemption price; thus, petitioner was ordered to pay the deficient
amount due to respondent.

Moreover, the Court of Appeals resolved petitioner's motion for reconsideration in its
Resolution[34] dated November 5, 2001. The Resolution was properly served on petitioner's
counsel of record on November 14, 2001.[35] Notice sent to counsel of record is binding upon the
client, and the neglect or failure of counsel to inform him of an adverse judgment resulting in the
loss of his right to appeal is not a ground for setting aside a judgment valid and regular on its face.
[36] Fifteen days from receipt of the Resolution dated November 5, 2001, the Decision became
final and executory absent any appeal by petitioner. Hence, the Entry of Judgment issued on
November 30, 2001 was in order.

Petitioner contends that the ruling of the Court of Appeals that his motion for reconsideration had
been resolved is inconsistent with respondent's Motion to Remand Records to the Court A Quo.

The contention is without merit.

There is no inconsistency as respondent's Motion to Remand Records to the Court A Quo[37] was
for the purpose of securing a writ of execution of the Decision of the Court of Appeals dated March
23, 2001. In a Resolution dated October 17, 2002, the Court of Appeals resolved to note the said
motion "pending receipt by the Court of the reply to tracer showing the date of receipt by counsel
for [petitioner] of a copy of the Resolution dated November 5, 2001 and the subsequent
verification by the Judicial Records Office that no Motion for Reconsideration or appeal to the
Supreme Court was interposed by the adverse party."[38]

Based on the records of the case, the Resolution dated November 5, 2001, denying petitioner's
motion for reconsideration of the Decision dated March 23, 2001, was received by petitioner's
counsel on November 14, 2001.[39] Petitioner failed to appeal the Court of Appeals' Decision to
this Court.

The failure to file an appeal from the decision rendering it final and executory is not a denial of due
process.[40] The right to appeal is not a natural right or a part of due process; it is merely a
statutory privilege, and may be exercised only in the manner and in accordance with the
provisions of the law.[41]

Further, the proper remedy for allegations of mistake or inexcusable negligence of counsel, which
prevented a party from taking an appeal, is a petition for relief under Rule 38 of the Rules of Court.
[42] The petition must be filed within 60 days after the petitioner learns of the judgment, final
order, or other proceeding to be set aside, and not more than six (6) months after such judgment
or final order was entered.[43] It must be filed within the reglementary period, which is reckoned
from the time the party's counsel receives notice of the decision for notice to counsel of the
decision is notice to the party.[44]

Since the Decision of the Court of Appeals became final and executory and Entry of Judgment was
issued on November 30, 2001, the Decision can no longer be reviewed by this Court. Hence, the
third and fourth issues raised need not be discussed.
VILL TRANSPORT SERVICE, INC., petitioner, vs.
HON. COURT OF APPEALS, THE ENERGY CORPORATION, and the DEPUTY SHERIFF of the
Regional Trial Court, Makati, Metro Manila, respondents.
We find for the private respondent.
Section 8, Rule 13 of the Rules of Court provides that "(s)ervice by registered mail is complete upo
n actual receipt
by the addressee but if he fails to claim his mail from the post office within five (5) days from the
date of first
notice of the postmaster, service shall take effect at the expiration of such time." In Barrameda vs.
Castillo, 4 the
Court held that since the exception in service by registered mail refers to constructive service, not
to actual receipt
of the mail, it is but fair and just that there be conclusive proof that a first notice was sent by the p
ostmaster to the
addressee. While in the more recent case of De la Cruz vs. De la Cruz, 5 the Court appears to have
adopted the
more stringent rule of requiring not only that the notice of the registered mail be sent but that it s
hould also be
delivered to and received by the addressee, We find that this rule cannot be applied in this case w
herein the element of negligence is present.
Petitioner herein disputes that a first notice was ever sent to its counsel of record because "the po
st office just
returned the registered letter and put the stampmark . . . 'Moved'" thereon. 6 To our mind, petition
er's contention
is sufficient proof that indeed a first notice was sent to its counsel of record. Its nonreceipt by the a
ddressee,
however, was due entirely to his neglect in informing the court of the fact that he had moved and
had a new
address. To cater to petitioner's rhetorical argument would put a premium on negligence and enco
urage the nontermination of cases by reason thereof.
In Antonio vs. Court of Appeals, 7 the Court categorically stated that the requirement of conclusive
proof of receipt
of the registry notice "presupposes that the notice is sent to the correct address as indicated in the
records of the
court. It does not apply where, as in the case at bar, the notice was sent to the lawyer's given addr
ess but did not
reach him because he had moved therefrom without informing the court of his new location. The s
ervice at the old
address should be considered valid. Otherwise, no process can be served on the client through his
lawyer if the
latter has simply disappeared without leaving a forwarding address. There is no need to stress that
service on the
lawyer, if valid, is also valid service on the client he represents. The rule in fact is that it is on the l
awyer and not the client that the service should first be made."
Losing a case on account of one's counsel's negligence is a bitter pill to swallow for the litigant. Bu
t then, the Court is dutybound to observe its rules and procedures. And, in the observance
thereof for the orderly
administration of justice, it cannot countenance the negligence and ineptitude of lawyers who wan
tonly jeopardize
the interests of their clients. 8 On his part, a lawyer shall observe the rules of procedure and shall
not misuse them to defeat the ends of justice. 9
Thus, a lawyer should so arrange matters that official and judicial communications sent by mail wil
l reach him
promptly and should he fail to do so, not only he but his client as well, must suffer the consequenc
e of his
negligence. 10 Failure to claim registered mail of which notice had been duly given by the postmas
ter is not
excusable negligence that would warrant the reopening of a decided case. 11 The same rule appli
es in cases like
the instant one where the counsel, through his negligence, caused the nondelivery of a judicial not
ice.
WHEREFORE, the instant petition is hereby denied for lack of merit. This decision is immediately ex
ecutory. Costs against the petitioner.
CEBU STEVEDORING COMPANY, INC., petitioner, vs.
THE HONORABLE JUDGE JOSE R. RAMOLETE
The question for determination is whether the lack of a formal written notice of appearance by the
collaborating
lawyer for herein petitioner, Atty. Malilong Jr., would affect adversely the validity of the appeal time
ly perfected by such counsel. Section 2 of Rule 113 provides: SEC.2. Papers to be filed and served.-
Every order required by its terms to be served, every pleading
subsequent to the complaint, every written motion other than one which may be heard ex parte, a
nd
every written notice, appearance with the court, and served upon the parties affected thereby. If a
ny
of such parties has appeared by an attorney or attorneys, service upon him shall be made upon hi
s
attorneys or one of them, unless service upon the party himself is ordered by the court. Where an
attorney appears for several parties, he shall only be entitled to one copy of any paper served upo
n him by the opposite side. ... . While the context of the above-
quoted provision of the Rules that the formal appearance of an attorney shall be
filed with the court and served upon the parties affected thereby clearly indicate that the appeara
nce of such an
attorney shall be in writing, the underlying reason for such requirement is that to enable the office
rs concerned to
effectively serve processes on the attorney of record. 2 Accordingly, the fact that no formal written
entry of appearance
has been filed by a new collaborating counsel or that the same was filed only after he had filed cer
tain pleadings could not
seriously affect, much less nullify the validity of the acts and the pleadings filed by the appearing
attorney as wrongly held
by respondent judge. (At most, the judge could compel the attorney to file a formal written notice
of appearance, in addition to his appearance through the pleadings filed by him.)
It has thus been categorically ruled in Ong Ching vs. Ramolete, etc. et al. 3 that "while it may be d
esirable in the in
interest of an orderly conduct of judicial proceedings that a counsel for a party should file with the
court his formal written
appearance in the case, before filing a pleading therein, or mention in said pleading that he is sub
mitting the same in collaboration with the counsel of record, the mere circumstance that
such acts were not done does not warrant the
conclusion that the pleading filed by such counsel has no legal effect whatsoever. "
As to Atty. Malilong's authority to appear as collaborating counsel, the following provision of sectio
n 21 of Rule 138 reads: Section 21. Authority of attorney to appear.-
An attorney is presumed to be properly authorized to
represent any cause in which he appears, and no written power of attorney is required to authorize
him to appear in court for his client, but the presiding judge may, on motion of either party and on
reasonable grounds therefor being shown, require an attorney who assumes the right to appear in
a
case to produce or prove the authority under which he appears, and to disclose whenever pertinen
t to any issue, the name of the person who employed him, and may thereupon make such order as
justice requires. ... .
It has been held that as a logical corollary of the presumption that a lawyer is authorized to appear
for the party
he represents, it is also presumed that the lawyer is authorized by, and has conferred with, his clie
nt regarding the
case before he files an important responsive pleading for and on behalf of the latter.
If respondent judge entertained any serious doubt on the authority of Atty. Malilong even after the
latter had
formally entered his appearance in writing as collaborating counsel for the therein petitioner, nine
days after the
perfection of the appeal, respondent judge should have required the said attorney to produce or pr
ove his authority, in accordance with the abovequoted Rule.
Respondent judge in ruling that the appeal seasonably perfected by Atty. Malilong on behalf of peti
tioner was "of
no force and effect" notwithstanding that petitioner indubitably proved at the reconsideration heari
ng that Atty.
Malilong had been duly employed as petitioner's legal counsel since February 16, 1980 at P2,500.0
0 per month,
and in dismissing the appeal, manifestly erred and acted with grave abuse of discretion.
Respondent judge clearly ignored the oftrepeated principles laid down by the Court that "(A) rigid
adherence to
the technical rules of procedure disregards the fundamental aim of procedure to serve as an aid to
justice, not as
a means for its frustration, and the objective of the Rules of Court to afford litigants just, speedy a
nd inexpensive
determination of their controversy. Thus, excusable imperfections of form and technicalities of proc
edure or lapses in the literal or rigid observance of a procedural rule or non-
jurisdictional deadline provided therein should
be overlooked and brushed aside as trivial and indecisive in the interest of fair play and justice wh
en public policy
is not involved, no prejudice has been caused the adverse party and the court has not been depriv
ed of its authority or jurisdiction." 4
The Court does not look with favor on such disregard of basic rules and principles by the lower cou
rts which
needlessly compel the aggrieved parties to resort to the higher courts for redress and take up the
time which they could well devote to more meritorious cases, and it will administratively
call judges to account therefor in
appropriate cases which manifest gross ignorance of the law or incompetence. While the Court has
held that it
would not hold judges administratively liable for honest errors of judgment, this case can hardly be
said to fall within such a category.
The Court has noted a common error of trial courts and lawyers in cases of appeals from the Court
s of First
Instance to the Supreme Court on pure questions of law, of the appellant still filing a record on app
eal which is in
due course approved and elevated to the Supreme Court, as in this case. Such mode of appeal of
filing a Record
on Appeal together with the appeal bond and notice of appeal in the Court of First Instance is good
only for
regular appeals from the Court of First Instance to the Court of Appeals, and is governed by Rule 4
1 of the Rules
of Court. Appeals directly from the Court of First Instance to the Supreme Court as in this case hav
e been
governed since September 9, 1968 by Republic Act No. 5440 whereunder the appellant is required
to file a
petition for review on certiorari (as in appeals from the Court of Appeals to the Supreme Court und
er Rule 45 of the Rules of Court, specifically sections 1, 2 and 3 thereof) with payment of the
5 Sections 1, 2 and 3 of Rule 45, Rules of Court read:
SECTION 1. Filing of petition with Supreme Court. A party may appeal by certiorari,
from a judgment of the Court of Appeals, by filing with the Supreme Court a petition for
certiorari, within fifteen (15) days from notice of judgment or of the denial of his motion
for reconsideration filed in due time, and paying at the same time to the clerk of said
court the corresponding docketing fee. The petition shall not be acted upon without
proof of service of a copy thereof to the Court of Appeals. SECTION 2. Contents of petition -
The petition shall contain a concise statement of the
matters involved, the assignment of errors made in the court below, and the reasons
relied on for the allowance of the petition, and it should be accompanied with a true copy
of the judgment sought to be reviewed, together with twelve (12) copies of the record on
appeal, if any, and of the petitioner's brief as flied in the Court of Appeals. A verified statement of
the date when notice of judgment and denial of the motion for
reconsideration, if any, were received shall accompany the petition.
Only questions of law may be raised in the petition and must be distinctly set forth. If no
record on appeal has been filed in the Court of Appeals, the clerk of the Supreme Court,
upon admission of the petition shall demand from the Court of Appeals the elevation of
the whole record of the case. SECTION 3. Dismissal -
Upon petition of the respondent filed within five (5) days from
service of the petition, or upon its own motion, the Supreme Court may dismiss the
petition on the ground that the appeal is without merit, or is prosecuted manifestly for
delay, or that the questions raised therein ar too unsubstantial to require consideration.
docketing fees and service of copy of the petition on the Court of First Instance which petition th
e Supreme
Court may forthwith dismiss as "without merit" or "Prosecuted manifestly for delay" or raising ques
tions "too unsubstantial to require consideration. 6
Following this Court's established practice where the trial court has nevertheless forwarded to this
Court the
appellant's Record on Appeal (which is not necessary in direct appeals from the Court of First Insta
nce to this
Court on questions of law) and so as to expedite the matter, the Court instead of waiting for the Re
cord on Appeal
to be elevated upon respondent judge's giving of due course to the appeal as herein required, will
now require
petitioner to file directly with this Court the corresponding petition for review on certiorari of respo
ndent court's
judgment of October 27, 1980, and pay the docket and legal research fund fees in the total amoun
t of P53.00 within fifteen (15) days from notice hereof, as hereinabove indicated.
ACCORDINGLY , the order complained of is set aside and the respondent court is hereby ordered t
o give due
course to the appeal. As stated in the preceding paragraph, petitioner is granted a period of fifteen
(15) days from
notice hereof within which to file directly with this Court the corresponding petition for review on c
ertiorari of
respondent court's judgment of October 27, 1980 and pay the docket and legal research fund fees.
With costs against private respondent. SO ORDERED.
ROMEO ZOLETA, petitioner, vs.
THE HONORABLE SECRETARY OF LABOR, FRANKLIN DRILON
We resolve the case in favor of the petitioner. It is well-
settled that notice to counsel is notice to the client. 6 On the other hand, notice to the client does
not amount
to notice to counsel. 7 The reason for the latter rule is explained in J.M. Javier Logging Corporation
v. Mardo, 8 to wit
... where a party appears by attorney, notice to the former is not a notice in law, unless service up
on
the party himself is ordered by the court xxx. This rule is not a mere technicality, but one founded
on
considerations of fair play. A party engages an attorney of record precisely because it does not feel
competent to deal with the intricacies of law and procedure. Furthermore, as the party directly ser
ved
would have to communicate with its attorney and turn over to him the notice received, the net res
ult
would be to noticeably shorten the usable period for taking the proper steps required to protect th
e party's interests.
Thus, when a party is represented by his counsel in a particular case, notice of proceedings must b
e served upon the counsel to constitute valid notice.
In the case at bar, the private respondents were assisted by their counsel, Atty. Azura when the ca
se was pending
before the POEA. However, said counsel failed to inform the POEA about his official address. If Atty.
Azura had been diligent in attending to his duties as counsel, he would not have over-
looked such elementary matter as
giving his exact address to the POEA. At the very least, he should have filed his answer which the
POEA required
of him wherein again his address as counsel would be stated. Nevertheless, it was only when he le
arned of the
Order adverse to the interests of his client that he decided to do something. Such irresponsibility o
f counsel cannot be countenanced.
The inaction of the said counsel placed the POEA in a dilemma. The POEA had to choose between r
esolving the
pending case or waiting indefinitely for the private respondents or their counsel to appear. It made
the light
decision by resolving the case. The important consideration that was apparently taken into accoun
t by the POEA
was that the interests of justice would be jeopardized if the case were unduly protracted. After res
olving the case,
the POEA had no choice but to serve notice of the Order dated June 3, 1986 upon the private respo
ndents
themselves. Considering the circumstances of this case, i.e., the earnest desire of the petitioner to
prosecute his
complaint despite several postponements requested by the private respondents, the trouble he ha
d to go through
in Kuwait, and the inexcusable negligence of the counsel for the private respondents, the action ta
ken by the
POEA is obviously justified. We, therefore, hold that the notice upon the private respondents thems
elves of the
questioned order constitutes valid notice in law on account of the circumstances obtaining in this c
ase. This is an exception to the general rule.
The private respondents cannot claim a denial of due process of law. They had every opportunity t
o present their
side but failed to do so. In the application of the principle of due process, what is sought to be safe
guarded is not lack of previous notice but the denial of the opportunity to be heard. 9
Since the private respondents received notice of the POEA Order dated June 3, 1986 on June 12, 1
986, they had
ten (10) days from that date within which to seek a reconsideration of or pursue an appeal from th
e said Order
pursuant to the rules and regulations of the POEA. As the private respondents took no action withi
n the said
reglementary period, the POEA Order dated June 3, 1986 had become final and executory and as s
uch, the
Minister of Labor and Employment had no jurisdiction to take cognizance of the appeal much less t
o reverse or modify the said order.
Accordingly, We hold that the respondent Minister of Labor and Employment acted without jurisdic
tion in reversing
the POEA Order dated June 3, 1986 which had already become final and executory. The writ of cert
iorari sought in this Petition must, therefore, issue.
WHEREFORE, the Petition is hereby GRANTED. The Order issued by the public respondent Minister
of Labor
and Employment on December 29, 1986 is hereby SET ASIDE and another is hereby rendered reviv
ing the order of the POEA dated June 3, 1986. Costs against the private respondents.
CITY OF DAGUPAN, represented by the CITY MAYOR BENJAMIN S. LIM, Petitioner, vs.
ESTER F. MARAMBA,
Mistake bordering on extrinsic fraud
Rule 38 of the Rules of Court allows for the remedy called a petition for relief from judgment. This i
san equitable
remedy "allowed in exceptional cases when there is no other available or adequate remedy"75 tha
t will allow for substantive justice.
Section 1 of Rule 38 provides for the grounds that warrant the filing of a petition under Rule 38:
SECTION 1. Petition for relief from judgment, order, or other proceedings. When a judgment or fin
al order is
entered, or any other proceeding is thereafter taken against a party in any court through fraud, ac
cident, mistake,
or excusable negligence, he may file a petition in such court and in the same case praying that the
judgment, order or proceeding be set aside. (Emphasis supplied)
Courts may set aside final and executory judgments provided that any of the grounds for their gra
nt are present.
The presence of "fraud, accident, mistake or excusable negligence" must be assessed from the cir
cumstances of the case.
Excusable negligence as a ground for a petition for relief requires that the negligence be so gross "
that ordinary
diligence and prudence could not have guarded against it."76 This excusable negligence must also
be imputable to the party-
litigant and not to his or her counsel whose negligence binds his or her client.77 The binding effect
of
counsels negligence ensures against the resulting uncertainty and tentativeness of proceedings if
clients were allowed to merely disown their counsels conduct.78
Nevertheless, this court has relaxed this rule on several occasions such as: "(1) where [the] reckles
s or gross
negligence of counsel deprives the client of due process of law (2) when[the rules] application wil
l result in
outright deprivation of the clients liberty or property or (3) where the interests of justice so requir
e."79 Certainly, excusable negligence must be proven.
Fraud as a ground for a petition for relief from judgment pertains to extrinsic or collateral fraud.80
This court explained this type of fraud as follows: Where fraud is the ground, the fraud must
be extrinsic or collateral. The extrinsic or collateral fraud that
invalidates a final judgment must be such that it prevented the unsuccessful party from fully and f
airly presenting
his case or defense and the losing party from having an adversarial trial of the issue. There is extri
nsic fraud
when a party is prevented from fully presenting his case to the court as when the lawyer connives
to defeat or
corruptly sells out his clients interest. Extrinsic fraud can be committed by a counsel against his cl
ient when the latter is prevented from presenting his case to the court. (Citations omitted)81
On the other hand, mistake as used in Rule 38 means mistake of fact and not mistake of law.82 A
wrong choice in
legal strategy or mode of procedure will not be considered a mistake for purposes of granting a pe
tition for relief
from judgment.83 Mistake as a ground also "does not apply and was never intended to apply to a j
udicial error
which the court might have committed in the trial [since] such error may be corrected by means of
an appeal."84
Mistake can be of such nature as tocause substantial injustice to one of the parties. It may be so p
alpable that it borders on extrinsic fraud.
Petitioner city recounted the "mistakes, negligence, incompetence and suspicious acts/omissions"
85 of city legal
officer Atty. Roy S. Laforteza in the affidavit of merit signed by then Mayor, Benjamin S. Lim:
a) He did not present testimonialevidence for the defense
b) He filed a Motion for Reconsideration of a decision most prejudicial to the City on the last day, a
nd did
not even base his arguments on the transcripts that clearly show that the plaintiff had presented a
bsolutely
no evidence/proof of her claim for damages and attorneys fees also, he did not directly attack the
Decision
itself, which awarded P10M as actual damages and P500,000.00 as attorneys fees without stating
clearly
and distinctly the facts on which the awards are based (because there are actually no such facts).
c) He filed a motion for reconsideration without the requisite notice of hearing his most grievous
and fatal
error. This resulted in the finality of the Decision, and the issuance of the Order of Execution.
d) He kept the adverse decision, the denial of his Motion for Reconsideration and the Order of Exec
ution
from this affiant, his immediate superior, and relied on his own devices (several times, he received
but
completely ignored the advice and the reminder of the City Administrator that he should consult
and
coordinate with the Citys legal consultant, Atty. Francisco F. Baraan III) despite the already precari
ous
situation he put the City in. As I said, I was informed of the order of execution by another lawyer.86
(Emphasis supplied)
Atty. Lafortezas "mistake" was fatal considering that the trial court awarded a total amount of P11
million in favor
of Maramba based merely on her testimony that "the actual costof the building through continuou
s improvement
is Five Million (5M) more or less"87 that her husband spent $1,760 for a round trip business travel
to the
Philippines to attend to the case and that "for his accommodation and car rental, her husband spe
nt more or less, P10,000.00 including round trip ticket."88
First, nowhere in the trial courts July 30, 2004 decision penned by Judge Laron did it state or refer
to any
document presented by Maramba to substantiate her claimed costs. In fact, the amounts she testi
fied on did not even add up to the P10 million the court awarded as actual damages. On the
other hand, the August 25, 2005 trial court decision penned by Judge Castillo discussed
that
"Marambawas only able to prove the amount of P75,000.00 as the appraised value of the improve
ments made on
the leased premises."89 The renewal lease agreement covering the property, signed by Maramba,
clearly stated
this amount.90 The decision also explained that Maramba "was not ableto show proof of the 5 milli
on amount of
improvements made on the establishment, as she was claiming to have been made[,]"91 and "she
did not show
any single receipt for her traveling expenses and for the car rental she made during her stay in the
country for the purpose of prosecuting this case."92
Second, the body of the trial courts July 30, 2004 decision mentioned that Maramba was entitled t
o 1 million as moral damages and P500,000.00 as attorneys fees.93 This is inconsistent with
the dispositive portion that
awarded P500,000.00 as moral damages and P500,000.00 as attorneys fees.94
The affidavit of merit discussed thatMaramba testified on her shock, sleepless nights, and mental
anguish, but
she never expressly asked for moral damages or specified the amount of P500,000.00.95
On the amount of attorneys fees, the affidavit of merit explained that Maramba did not show a leg
al retainerbut
only mentioned in passing, "Of course, (I am asking for) my attorneys fees in the amount of P500,
000.00."96 Maramba now wants this court to overlook all these blatant discrepancies and
maintain the P11 million
unsubstantiated award in her favor on the sole ground that petitioner citys assistant legal officer f
ailed to include a notice of hearing in its motion for reconsideration that was filed within the 15-
day reglementary period. She did not even attempt to address the lower courts findings
that her claimed amounts as damages were all unsubstantiated.
The gross disparity between the award of actual damages and the amount actually proved during t
he trial, the
magnitude of the award, the nature of the "mistake" made, and that such negligence did not perso
nally affect the
legal officer of the city all contributed to a conclusion that the mistake or negligence committed by
counsel bordered on extrinsic fraud.
There were discrepancy and lack of proof even on the amount of moral damages and attorneys fe
es awarded.
This only heightened a sense of arbitrariness in the trial courts July 30, 2004 decision. Petitioner ci
tys petition for relief was correctly granted in the trial courts August 25, 2005 decision.
Petitioner city followed the procedure under Rule 38 of the Rules of Court. Section 4 of Rule 38 pro
vides that "[i]f
the petition is sufficient in form and substance to justify relief, the court in which it is filed, shall iss
ue an order
requiring the adverse parties toanswer the same within fifteen (15) days from the receipt thereof."
The trial court mentioned in its November 18, 2004 order denying petitioner citys petition for relie
f from judgment
that an answer with motion to dismiss was filed before it.97 Maramba prayed that the "petition for
review be outright denied for lack of merit [and] that the writ of execution dated October
26, 2004 be accordingly implemented."98
Thus, the requirement under Section 4 of Rule 38 was complied with when Maramba filed an answ
er with motion
to dismiss, and the court considered this pleading in its resolution of petitioner citys petition for re
lief from judgment. Periods for filing a petition for relief under Rule 38
The time for filing a petition for relief is found under Section 3, Rule 38 of the Rules of Court, which
reads:
SEC. 3 Time for filing petition contents and verification. A petition provided for in either of the pr
eceding
sectionsof this Rule must be verified, filed within sixty (60) days after the petitioner learns of the ju
dgment, final
order, or other proceeding to be set aside, and not more than six (6) months after such judgment
or final order was entered, or such proceeding was taken and must be accompanied with
affidavits showing the fraud,
accident, mistake or excusable negligence relied upon, and the facts constituting the petitioners g
ood and substantial cause of action or defense, as the case may be. (Emphasis supplied)
The double period required under thisprovision is jurisdictional and should be strictly complied with
.99 Otherwise, a
petition for relief from judgment filed beyond the reglementaryperiod will be dismissed outright.10
0
The 60day period to file a petition for relief from judgment is reckoned from actual receipt of the d
enial of the motion for reconsideration when one is filed.101 Petitioner city received a copy of
the July 30, 2004 decision on August 11, 2004. It filed a motion for
reconsideration on August 26, 2004. On October 25, 2004, it received a copy of the October 21, 20
04 trial court
order denying its motion for reconsideration. Four days later or on October 29, 2004, it filed its peti
tion for relief
from [Link], the petition for relief from judgment was considered filed on time.
Actual damages
The issue on the amount of damages is a factual question that this court may not resolve in a Rule
45 petition.102 However, this rule admits of recognized exceptions:
The recognized exceptions to this rule are: (1) when the conclusion is a finding grounded entirely o
n speculation,
surmise and conjecture (2) when the inference made is manifestly mistaken (3) when there is a g
rave abuse of
discretion (4) when the judgment is based on a misapprehension of facts (5) when the findings of
fact are
conflicting (6) when the Court of Appeals went beyond the issues of the case and its findings are c
ontrary to the
admissions of both appellant and appellee (7) when the findings of fact of the Court of Appeals ar
e contrary to
those of the trial court (8) when said findings of fact are conclusions without citation of specific e
vidence on which they are based
(9) when the facts set forth in the petition aswell as in the petitioners main and reply briefs
are not disputed by the respondents and (10) when the findings of fact of the Court of Appeals are
premised on
the supposed absence of evidence and contradicted by the evidence on record. (Sarmiento v. Cour
t of Appeals, 353 Phil. 834, 846 [1998]).103 (Emphasis supplied)
The July 30, 2004 trial court decision penned by Judge Laron only summarized Marambas testimon
y as basis for its award of 10 million as actual damages:
She asked her husband to help her on her legal problem regarding the demolished fish market, tell
ing him to go
to the Philippines and find out what happened and help her family. Her husband came to the Philip
pines. He left
on December 30, 2003 and arrived on December 31, 2003. Her husband stayed in the Philippines f
or twentyone
(21) days and paid 1,760 dollars for the business class round trip fare. For his accommodation and
car rental, her
husband spent more or less Php10,000.00 including the round trip ticket. She has been in possessi
on of that property subject of this case for more than thirty-
two (32) years and for the duration of more than 32 years that
they are in possession of the property, she spent for the construction and improvement of the buil
ding and the
actual cost of the building through continuous improvement is Five Million (5M) more or less. The a
mount of
Php75,000.00 was her expenses incurred for the year [Link] to her sufferings, she asked the C
ourt for moral damages in the amount of Ten Million (10M) pesos for the damages,
attorneys fees in the amount of
Php500,000.00 and all those expenses incurred in coming to the Philippines together with her hus
band to seek redress, they spent 1,760 dollars times two (1-
8 TSN March 9, 2004) (Emphasis supplied).104
On the other hand, in the August 25, 2005 order penned by Judge Castillo, the court explained that
"Maramba
was only able to prove the amount of P75,000.00 as the appraised value of the improvements mad
e on the leased premises."105
In its petition filed beforethis court, petitioner city attached a copy of the miscellaneous lease agre
ement between Maramba and the DENR which provides:
THIRD It is hereby understood and agreed that the appraised value of the land for the first ten (1
0) years, from
May 13, 1998, is P400.00 per square meter or P13,600.00 for the whole tract of land and the appra
ised value of
the improvements existing on the land and those proposed to be introduced thereon is P75,000.00
.106 (Emphasis supplied)
Article 2199 of the Civil Code defines actual damages. It states that "[e]xcept as provided by law o
r by stipulation,
one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he ha
s duly
proven."107 Competent proof of the amountclaimed as actual damages is required before courts
may grant the award:
Actual damages, to be recoverable, must not only be capable of proof, but must actually be prove
d with a reasonable degree of certainty.1 w p h
i1 Courts cannot simply rely on speculation, conjecture or guesswork in determining
the fact and amount of damages. To justify an award of actual damages, there must be competent
proof of the
actual amount of loss, credence can be given only to claims which are duly supported by receipts.
108
Petitioner city emphasized the argument it made in its motion for reconsideration that "the improv
ements allegedly
destroyed or damaged consists [sic] only of G.I. sheets and some makeshift stalls used for buying
and selling of
fishery products [and] [b]y no stretch of imagination would said materials amount to Php10,000,00
0.00 as claimed
by the plaintiff."109 Considering the foregoing, substantial justice warrants the grant of the petitio
n.
WHEREFORE, the petition is GRANTED. The Court of Appeals June 15, 2006 decision and August 1
4, 2006
resolution are REVERSED and SET ASIDE. The trial court orders dated August 25, 2005 and Novem
ber 30, 2005 are AFFIRMED.
HENRY ONG LAY HIN, Petitioner, vs.
COURT OF APPEALS (2nd Division), HON. GABRIEL T. INGLES, as Presiding Judge of RTC
Branch 58, Cebu City, and the PEOPLE OF THE PHILIPPINES, Respondents.
The issues for this courts resolution are:
(1) Whether the Court of Appeals gravely abused its discretion in issuing the entry of judgment
(2) Whether the trial court gravely abused its discretion in issuing the warrant of arrest and commi
tment order against petitioner Henry Ong Lay Hin and
(3) Whether petitioner Henry Ong Lay Hins former counsel was grossly negligent.
This petition should be denied. I There is no grave abuse of discretion in this case
Grave abuse of discretion is the "arbitrary or despotic exercise of power due to passion, prejudice
or personal
hostility or the whimsical, arbitrary, or a capricious exercise of power that amounts to an evasion
or a refusal to perform a positive duty enjoined by law or to act at all in contemplation of law."49
In the present case, petitioner failed to prove the Court of Appeals and trial courts grave abuse of
discretion.
The registry return card is the "official . . . record evidencing service by mail."50 It "carries the pres
umption that it
was prepared in the course of official duties that have been regularly performed [and, therefore,] it
is presumed to be accurate, unless proven otherwise[.]"51
Petitioner failed to rebut this presumption. The affidavits of petitioners wife and motherin-
law, Mary Ann Ong and Nila Mapilit, stating that petitioners former
counsel told them that the law office never received a copy of the Resolution,52 are inadmissible i
n evidence for
being hearsay.53 Moreover, contrary to petitioners false claim, his former counsel had notice that
the Court of
Appeals denied the Motion for Reconsideration as early as April 21, 2004 when his counsel receive
d a copy of the trial courts Order directing the issuance of a warrant of arrest against petitioner.54
With petitioner failing to rebut this presumption, it must be presumed that his former counsel recei
ved a copy of the Resolution on April 29, 2003 as indicated in the registry return card. The 15-
day period to appeal commenced
from this date.55 Since petitioner did not file an Appeal within 15 days from April 29, 2003, the De
cision became final and executory on May 15, 2003.
Consequently, the Court of Appeals did not gravely abuse its discretion in issuing the Entry of Judg
ment, which
declared petitioners conviction final and executory as of May 15, 2003. Under Rule 51, Section 10
of the Rules of
Court on "Judgment," "if no appeal or motion for new trial or reconsideration is filed within the time
provided in
these Rules, the judgment or final resolution shall forthwith be entered by the clerk in the book of
entries of
judgments. The date when the judgment or final resolution becomes executory shall be deemed as
the date of its entry."
As for the trial court, it likewise did not gravely abuse its discretion in issuing the arrest warrant ag
ainst petitioner
and ordering his commitment to the Cebu City Jail. Since the Court of Appeals had already issued t
he Entry of
Judgment and had remanded to the trial court the original records of the case, it became the trial c
ourts duty to execute the judgment. II The negligence of petitioners former counsel bound him
The general rule is that the negligence of counsel binds the client, even mistakes in the applicatio
n of procedural
rules.56 The exception to the rule is "when the reckless or gross negligence of the counsel deprive
s the client of due process of law."57
The agency created between a counsel and a client is a highly fiduciary relationship. A counsel bec
omes the eyes
and ears in the prosecution or defense of his or her clients case. This is inevitable because a com
petent counsel
is expected to understand the law that frames the strategies he or she employs in a chosen legal r
emedy.
Counsel carefully lays down the procedure that will effectively and efficiently achieve his or her cli
ents interests.
Counsel should also have a grasp of the facts, and among the plethora of details, he or she choose
s which are relevant for the legal cause of action or defense being pursued.
It is these indispensable skills, among others, that a client engages. Of course, there are counsels
who have both
wisdom and experience that give their clients great advantage. There are still, however, counsels
who wander in their mediocrity whether consciously or unconsciously.
The state does not guarantee to the client that they will receive the kind of service that they expe
ct. Through this
court, we set the standard on competence and integrity through the application requirements and
our disciplinary
powers. Whether counsel discharges his or her role to the satisfaction of the client is a matter that
will ideally be necessarily monitored but, at present, is too impractical.
Besides, finding good counsel is also the responsibility of the client especially when he or she can
afford to do so.
Upholding client autonomy in these choices is infinitely a better policy choice than assuming that t
he state is
omniscient. Some degree of error must, therefore, be borne by the client who does have the capac
ity to make choices.
This is one of the bases of the doctrine that the error of counsel visits the client. This court will cea
se to perform
its social functions if it provides succor to all who are not satisfied with the services of their counse
l. But, there is an exception to this doctrine of binding agency between counsel and client.1 w p
h i1 This is when the
negligence of counsel is so gross, almost bordering on recklessness and utter incompetence, that
we can safely
conclude that the due process rights of the client were violated. Even so, there must be a clear an
d convincing
showing that the client was so maliciously deprived of information that he or she could not have a
cted to protect
his or her interests. The error of counsel must have been both palpable yet maliciously exercised t
hat it should viably be the basis for disciplinary action.
Thus, in Bejarasco, Jr. v. People,58 this court reiterated:
For the exception to apply . . . the gross negligence should not be accompanied by the clients own
negligence or
malice, considering that the client has the duty to be vigilant in respect of his interests by keeping
himself upto
date on the status of the case. Failing in this duty, the client should suffer whatever adverse judgm
ent is rendered against him.59
In Bejarasco, Jr., Peter Bejarasco, Jr., failed to file a Petition for Review before the Court of Appeals
within the
extended period prayed for. The Court of Appeals then dismissed the Appeal and issued an Entry o
f Judgment.
His conviction for grave threats and grave oral defamation became final, and a warrant for his arre
st was issued.60
In his Petition for Review on Certiorari before this court, Peter Bejarasco, Jr. argued that his counsel
s negligence in failing to file the Appeal deprived him of due process.61
This court rejected Peter Bejarasco, Jr.'s argument, ruling that "[i]t is the client's duty to be in cont
act with his
lawyer from time to time in order to be informed of the progress and developments of his case[.]"6
2 "[T]o merely
rely on the bare reassurances of his lawyer that everything is being taken care of is not enough."6
3
This court noted the 16 months from the issuance of the Entry of Judgment and the 22 months fro
m the issuance
of the trial court's Decision before Peter Bejarasco, Jr. appealed his conviction.64 According to this
court, "[h]e
ought to have been sooner alerted about his dire situation by the fact that an unreasonably long ti
me had lapsed
since the [trial court] handed down the dismissal of his appeal without [his counsel] having update
d him on the developments[.]"65
In the present case, petitioner took almost seven (7) years, or almost 84 months, from the Court of
Appeals'
issuance of the Resolution denying his Motion for Reconsideration to file a Petition before this court
. As this court
ruled in Bejarasco, Jr., petitioner ought to have been sooner alerted of the "unreasonably long time
"66 the Court of
Appeals was taking in resolving his appeal. Worse, he was arrested in Pasay City, not in Cebu wher
e he resides.
His failure to know or to find out the real status of his appeal "rendered [petitioner] undeserving of
any sympathy from the Court visavis the negligence of his former counsel."67
We fail to see how petitioner could not have known of the issuance of the Resolution. We cannot ac
cept a
standard of negligence on the part of a client to fail to follow through or address counsel to get up
dates on his
case. Either this or the alternative that counsel's alleged actions are merely subterfuge to avail a p
enalty well deserved.