ALVAREZ vs. COURT OF FIRST INSTANCE

Alvarez vs. Court of First Instance of Tayabas [GR 45358, 29 January 1937]

First Division, Imperial (J): 4 concur

Facts: On 3 June 1936, the chief of the secret service of the Anti-Usury Board, of the Department of Justice, presented to Judge Eduardo Gutierrez David then presiding over the Court of First Instance of Tayabas, an affidavit alleging that according to reliable information, Narciso Alvarez kept in his house in Infanta, Tayabas, books, documents, receipts, lists, chits and other papers used by him in connection with his activities as a moneylender, charging usurious rates of interest in violation of the law. In his oath at the end of the affidavit, the chief of the secret service stated that his answers to the questions were correct to the best of his knowledge and belief. He did not swear to the truth of his statements upon his own knowledge of the facts but upon the information received by him from a reliable person. Upon the affidavit the judge, on said date, issued the warrant which is the subject matter of the petition, ordering the search of the Alvarez's house at any time of the day or night, the seizure of the books and documents and the immediate delivery thereof to him to be disposed of in accordance with the law. With said warrant, several agents of the Anti-Usury Board entered Alvarez's store and residence at 7:00 p.m. of 4 June 1936, and seized and took possession of the following articles: internal revenue licenses for the years 1933 to 1936, 1 ledger, 2 journals, 2 cashbooks, 9 order books, 4 notebooks, 4 check stubs, 2 memorandums, 3 bankbooks, 2 contracts, 4 stubs, 48 stubs of purchases of copra, 2 inventories, 2 bundles of bills of lading, 1 bundle of credit receipts, 1 bundle of stubs of purchases of copra, 2 packages of correspondence, 1 receipt book belonging to Luis Fernandez, 14 bundles of invoices and other papers, many documents and loan contracts with security and promissory notes, 504 chits, promissory notes and stubs of used checks of the Hongkong & Shanghai Banking Corporation (HSBC). The search for and seizure of said articles were made with the opposition of Alvarez who stated his protest below the inventories on the ground that the agents seized even the originals of the documents. As the articles had not been brought immediately to the judge who issued the search warrant, Alvarez, through his attorney, filed a motion on 8 June 1936, praying that the agent Emilio L. Siongco, or any other agent, be ordered immediately to deposit all the seized articles in the office of the clerk of court and that said agent be declared guilty of contempt for having disobeyed the order of the court. On said date the court issued an order directing Siongco to deposit all the articles seized within 24 hours from the receipt of notice thereof and giving him a period of 5 days within which to show cause why he should not be punished for contempt of court. On 10 June, Attorney Arsenio Rodriguez, representing the Anti-Usury Board, filed a motion praying that the order of the 8th of said month be set aside and that the Anti-Usury Board be authorized to retain the articles seized for a period of 30 days for the necessary investigation. On June 25, the court issued an order requiring agent Siongco forthwith to file the search warrant and the affidavit in the court, together with the proceedings taken by him, and to present an inventory duly verified by oath of all the articles seized. On July 2, the attorney for the petitioner filed a petition alleging that the search warrant issued was illegal and that it had not yet been returned to date together with the proceedings taken in connection therewith, and praying that said warrant be cancelled, that an order be issued directing the return of all the articles seized to Alvarez, that the agent who seized them be declared guilty of contempt of court, and that charges be filed against him for abuse of authority. On September 10, the court issued an order holding: that the search warrant was obtained and issued in accordance with the law, that it had been duly complied with and, consequently, should not be cancelled, and that agent Siongco did not commit any contempt of court and must, therefore, be exonerated, and ordering the chief of the Anti-Usury Board in Manila to show cause, if any, within the unextendible period of 2 days from the date of notice of said order, why all the articles seized appearing in the inventory should not be returned to Alvarez. The assistant chief of the Anti-Usury Board of the Department of Justice filed a motion praying, for the reasons stated therein, that the articles seized be ordered retained for the purpose of conducting an investigation of the violation of the Anti-Usury Law committed by Alvarez. On October 10, said official again filed another motion alleging that he needed 60 days to examine the documents and papers seized, which are designated on pages 1 to 4 of the inventory by Nos. 5, 10, 16, 23, 25-27, 30-31 , 34, 36-43 and 45, and praying that he be granted said period of 60 days. In an order of October 16, the court granted him the period of 60 days to investigate said 19 documents. Alvarez, herein, asks that the search warrant as well as the order authorizing the agents of the Anti-Usury Board to retain the articles seized, be declared illegal and set aside, and prays that all the articles in question be returned to him.

Issue: Whether the search warrant issued by the court is illegal because it has been based upon the affidavit of agent Almeda in whose oath he declared that he had no personal knowledge of the facts which were to serve as a basis for the issuance of the warrant but that he had knowledge thereof through mere information secured from a person whom he considered reliable, and that it is illegal as it was not supported by other affidavits aside from that made by the applicant.

Held: Section 1, paragraph 3, of Article III of the Constitution and Section 97 of General Orders 58 require that there be not only probable cause before the issuance of a search warrant but that the search warrant must be based upon an application supported by oath of the applicant and the witnesses he may produce. In its broadest sense, an oath includes any form of attestation by which a party signifies that he is bound in conscience to perform an act faithfully and truthfully; and it is sometimes defined as an outward pledge given by the person taking it that his attestation or promise is made under an immediate sense of his responsibility to God. The oath required must refer to the truth of the facts within the personal knowledge of the petitioner or his witnesses, because the purpose thereof is to convince the committing magistrate, not the individual making the affidavit and seeking the issuance of the warrant, of the existence of probable cause. The true test of sufficiency of an affidavit to warrant issuance of a search warrant is whether it has been drawn in such a manner that perjury could be charged thereon and affiant be held liable for damages caused. The affidavit, which served as the exclusive basis of the search warrant, is insufficient and fatally defective by reason of the manner in which the oath was made, and therefore, the search warrant and the subsequent seizure of the books, documents and other papers are illegal. Further, it is the practice in this jurisdiction to attach the affidavit of at least the applicant or complainant to the application. It is admitted that the judge who issued the search warrant in this case, relied exclusively upon the affidavit made by agent Almeda and that he did not require nor take the deposition of any other witness. Neither the Constitution nor General Orders 58 provides that it is of imperative necessity to take the depositions of the witnesses to be presented by the applicant or complainant in addition to the affidavit of the latter. The purpose of both in requiring the presentation of depositions is nothing more than to satisfy the committing magistrate of the existence of probable cause. Therefore, if the affidavit of the applicant or complainant is sufficient, the judge may dispense with that of other witnesses. Inasmuch as the affidavit of the agent was insufficient because his knowledge of the facts was not personal but merely hearsay, it is the duty of the judge to require the affidavit of one or more witnesses for the purpose of determining the existence of probable cause to warrant the issuance of the search warrant. When the affidavit of the applicant or complainant contains sufficient facts within his personal and direct knowledge, it is sufficient if the judge is satisfied that there exists probable cause; when the applicant's knowledge of the facts is mere hearsay, the affidavit of one or more witnesses having a personal knowledge of the facts is necessary. Thus the warrant issued is likewise illegal because it was based only on the affidavit of the agent who had no personal knowledge of the facts.

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Antonio L. Buensuceso Jr.

CASE WITH OATH EXPLAINED

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-44328 December 23, 1937

AGATON RODRIGUEZ and JUAN EVAGELISTA, petitioners-appellants,
vs.
VICTOR D. VILLAMIEL and ADOLFO N. FELICIANO, respondents-appellees.

Godofredo Reyes for appellants.
Office of the Solicitor General Hilado for appellees.

IMPERIAL, J.:

This is an appeal taken by the petitioners from the judgment rendered by the Court of First Instance of Tayabas on July 26, 1935, declaring legal two search warrants issued against them and authorizing the agents of the Anti-Usury Board to examine the documents and papers seized, belonging to the petitioners, and to retain those that in their opinion are pertinent and necessary to whatever criminal action they may wish to bring against said petitioners.

The respondent are special agent and assistant chief executive officer, respectively, of the Anti-Usury Board of the Department of Justice.

On March 8, 1935, special agent Victor D. Villamiel made two affidavits subscribed and sworn to before the justice of the peace of the provincial capital of Tayabas, then acting in the absence of the Judge of the Court of First Instance of the province, for the purpose of obtaining search warrants against each of the petitioners. The text of both affidavits is identical and the pertinent part thereof reads as follows: "Victor D. Villamiel, Special Agent, Anti-Usury Board, Dept. of Justice, having taken the oath appears, and states: that he has and there is just and probable cause to believe and he does believe that the book, lists, chits, receipts, documents, and another papers relating to the activities of JUAN EVANGELISTA, as usurer are being kept and concealed in the house of said JUAN EVANGELISTA situated at Lucena, Tayabas, all of which is contrary to the statute of law."

On the 9th of said month the justice of the peace of the provincial capital, acting in the absence of the Judge of the Court of First Instance in the Province of Tayabas, issued and delivered the two respondent the two search warrant aganst the petitioners, couched in the following tenor: "To any officer of the law, whereas in this day proof, by affidavit, having been presented before by VICTOR D. VILLAMIEL, Special Agent, Anti-Usury Board that he has and there is just and probable cause to believe and he does believe that the books, lists, chits, receipts, documents, and other papers relating to his activities of JUAN EVANGELISTA as usurer are being kept and concealed in his house situated at Lucena, Tayabas, Philippine Islands, all of which is contrary to the statute of the law. Therefore, you are hereby commanded during day or night or both to make an immediate search on the person of JUAN EVANGELISTA or in the house of said JUAN EVANGELISTA or in the house of said JUAN EVANGELISTA, situated at Lucena, Tayabas, P. I. for the following property books, lists, chits, receipts, documents, and other papers relating to his activities as usurer, and, if you find the same or any part thereof, to bring it forthwith before me in the Court of First Instance of Lucena, Tayabas. Witness my hand this 9th day of March, 1935. (Sgd.) FEDERICO M. UNSON, Juez de Cabecera, in the absence of the Judge of the Court of First Instance, Lucena, Tayabas, Philippine Islands."

On the afternoon of the same day, Villamiel, accompanied by other agents of the Anti-Usury Board and a constabulary soldier, executed the warrants, went to the residences of the petitioners, searched them seized documents and papers belonging to both petitioners, placing them in two small valises furnished by the petitioners themselves. The special agent issued a receipt to each of the petitioners, without specifying the documents and papers seized by him, which, together with the small valises, were taken by him to his office in Manila, keeping them therein until he was ordered by the Court of First Instance of Tayabas to deposit them in the office of the clerk of court.

On March 21, 1935, the petitioners instituted this proceedings by filing a petition praying that the search warrants be declared null and void and illegal; that the special agent Villamiel be punished for contempt of court for having conducted the searches and for having seized the documents and papers without issuing detailed receipts therefor and for not having turned them over to the court that issued the warrants, and, finally that said documents and papers be ordered returned to the petitioners.lawphil.net

After the special agent had filed his answer, the case was tried, following which the Court of First Instance rendered judgment finding said special agent guilty of contempt of court and sentencing him to pay a fine of P10. In said decision the court declared valid the search warrants and the seizure of the documents and papers but ordered all of them to be deposited with the clerk of court, authorizing the agents of the Anti-Usury Board to examine them and retain those that in their opinion are necessary and material to whatever criminal action they may wish to bring against the petitioners.

In this appeal the attorney for the petitioners contend that the judgment of the court is erroneous: (1) for having declared the search warrants valid; (2) for having sanctioned the seizure to the documents and papers; and (3) for having authorized the agents to examine them and to retain those that may be necessary for use as evidence against the petitioners.

1. A search warrant is an order in writing, issued in the name of the People of the Philippine Islands, signed by a judge or a justice of the peace, and directed to a peace officer, commanding him to search for personal property and bring it before the court (sec. 95 General Orders No. 58, as amended by section 6 of Act No. 2886). Of all the rights of a citizen, few are of greater importance or more essential to his peace and happiness than the right of personal security, and that involves the exemption of his private affair, books and papers from and scrutiny of others (In re Pacific Railway Commission, 32 Fed., 241; Intestate Commerce Comm. vs. Brimson, 38 Law. ed., 1047; Boyd vs. U.S., 29 Law. ed., 746; Carroll vs. U. S., 69 Law. ed., 543, 549). While the power to search and seize is necessary to the public welfare still it must be exercised and the law enforced without transgressing the constitutional rights of citizens, for the enforcement of no statute is of sufficient importance to justify indifference to the basic principles of government (People vs. Elias, 147 N. E., 472). (Alvarez vs. Court of First Instance of Tayabas and Anti-Usury Board, 35 Off. Gaz., 1183.)

2. As the protection of the citizen and the maintenance of his constitutional rights is one of the highest duties and privileges of the court, these constitutional guaranties should be given a liberal construction or a strict construction in favor of the individual, to prevent stealthy encroachment upon, or gradual depreciation of, the rights secured by them (State vs. Custer County, 198 Pac., 362; State vs. McDaniel, 231 Pac; 965 237 Pac., 373). Since the proceeding is a drastic one, it is the general rule that statutes authorizing searches and seizures or search warrants must be strictly construed (Rose vs. St. Clair, 28 Fed. [2d], 189; Leonard vs. U. S., 6 Fed. [2d], 353; Perry vs. U. S., 14 Fed. [2d] 88; Cofer vs. State, 118 So., 613). (Alvarez vs. Court of First Instance of Tayabas and Anti-Usury Board, supra.)

3. The petitioners contend that the search warrants issued by the court are illegal because they have been based on the affidavits of special agent Victor D. Villamiel wherein he affirmed and stated that he had no personal knowledge of the facts that were to serve as basis for the issuance of the search warrants, but merely confined himself to asserting that he believed and there was probable cause to believe that the documents and papers were related to the activities of the petitioners as usurers. As has been seen, the special agent's affirmation in this respect consisted merely in the following: "that he has and there is just and probable cause to believe and he does believe that the books, lists, chits, receipts, documents and other papers relating to the activities of . . . as usurer, are being kept and concealed in the house of said . . . situated at Lucena, Tayabas, all of which is contrary to the statute of law."

Section 1, Paragraph 3, of Article III of the Constitution, relative to the bill of rights, provides that "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized." Section 97 of General Orders No. 58 provides that "A search warrant shall not issue except for probable cause and upon application supported by oath particularly describing the place to be searched and the person or thing to be seized." It will be noted that both provisions require that there be not only probable cause before the issuance of a search warrant but that the search warrant must be based upon an application supported by oath of the applicant and the witnesses he may produce. In its broadest sense, an oath includes any form of attestation by which a party signifies that he is bound in conscience to perform an act faithfully and truthfully and it is sometimes defined as an outward pledge given by the person taking it that his attestation or promise is under an immediate sense of his responsibility to God (Bouvier's Law Dictionary; State vs. Jackson, 137 N. W., 1034 In re Sage, 24 Oh. Cir. Ct. [N.S.], 7; Pumphrey vs. State, 122 N. W., 19; Priest vs. State, 6 N. W., 468; State vs. Jones, 154 Pac., 378; Atwood vs. State, 111 S., 865). The oath required must refer to truth of the facts within the personal knowledge of the petitioner or his witnesses, because the purpose thereof is to convince the committing magistrate, no the individual making the affidavit and seeking the issuance of the warrant, of the existence of probable cause (U. S. vs. Tureaud, 20 Fed., 621; U. S. vs. Michalski, 265 Fed., 839; U. S. vs. Pitotto, 267 Fed,., 603; Us. Vs. Lai Chew, 298 Fed., 652). The true test of sufficiency of an affidavit to warrant issuance of a search warrant is whether it has been drawn in such a manner that perjury could be charged thereon and affiant be held liable for damages caused (State vs. Roosevelt County, 20th Jud. Dis Ct., 244 Pac., 280; State vs. Quartier, 236 Pac., 746).

It will likewise be noted that section 1, paragraph 3, of Article III of the Constitution prohibits unreasonable searches and seizures. Unreasonable searches and seizures are a menace against which the constitutional guaranties afford full protection. The term "unreasonable search and seizure" is not defined in the Constitution or in General Orders No. 58, and it is said to have no fixed, absolute or unchangeable meaning, although the term has been defined in general language. All illegal searches and seizures unreasonable while lawful ones are reasonable. What constitutes a reasonable or unreasonable search or seizure in any particular case is purely a judicial question, determinable from a consideration of the circumstances involved, including the purpose of the search, the presence or absence of probable cause, the manner in which the search and seizure was made, the place or thing searched, and the character of the articles procured (Go-Bart Importing Co. vs. U. S., 75 Law. ed., 374; Peru vs. U. S., 4 Fed., [2], 881; U. S., vs. Vatune, 292 Fed., 497; Agnello vs. U. S., 70 Law. ed., 145; Lambert vs. U. S., 282 Fed., 413; U. S. vs. Bateman, 278 Fed., 231; Mason vs. Rollins, 16 Fed., Cas. [No. 9252], 2 Biss., 99). (Alvarez vs. Court of First Instance Of Tayabas and Anti-Usury Board, supra.)

In view of the foregoing and in accordance with the above-cited authorities, it appears that the affidavits, which served as the exclusive basis of the search warrants, are insufficient and fatally defective by reason of the manner in which the oaths were made and, therefore, it is hereby held that the search warrants in question and the subsequent seizure of the documents and papers are illegal and do not in any way warrant the deprivation to which the petitioners were subjected.

4. The last ground alleged by the petitioners in support of their claim that the search warrant were obtained illegally, is that the documents and papers were seized in order that the Anti-Usury Board might provide itself with evidence to be used by it in the criminal cases which may be filed against them for violation of the Anti-Usury Law. At the hearing of the case, it was shown that the documents and papers had really been seized to enable the Anti-Usury Board to conduct an investigation and later use all or some of them as evidence against the petitioners in criminal cases that may be brought against them. The seizure of books and documents by means of a search warrant, for the purpose of using them as evidence in a criminal case against the person in whose possession they were found, is unconstitutional because it makes the warrant unreasonable, and it is equivalent to a violation of the constitutional provision prohibiting the compulsion of an accused to testify against himself (Uy Kheytin vs. Villareal, 42, Phil., 886; Alvarez vs. Court of First Instance of Tayabas and Anti-Usury Board, supra; Brady vs. U. S., 266 620; Temperani vs. U. S., 299 Fed., 365; Us. vs. Madden, 297 Fed., 679; Boyd vs. U. S., 116 U. S., 616; Carroll vs. U. S., 267 U. S., 132). Therefore, it appearing that the documents and papers were seized for the purpose of fishing for evidence to be used against the petitioners in the criminal proceedings for violation of the Anti-Usury Law which might be instituted against them, this court holds that the search warrants issued are illegal and that the documents and papers should be returned to them.

For the foregoing reasons, the appealed judgment is reversed and it is ordered that any of the judges presiding over the Court of First Instance of Tayabas, in turn, direct the immediate return of the documents and papers in question to the petitioners, without special pronouncement as to costs. So ordered.

Villa-Real, Abad Santos, Diaz and Concepcion, JJ., concur.

Separate Opinions

LAUREL, J., concurring:

In concurring in the foregoing opinion, I desire to observe that the provision in our Constitution with reference to unreasonable searches and seizures is not the same as that contained in the Jones Law. Under the Constitution, the right guaranteed is declared a popular right. "The right of the people . . .", so runs the precept. The provision also is made more specific and extends to "persons, houses, papers, and effects". The Constitution also specifically requires the determination of probable cause by the judge himself "after examination under oath or affirmation of the complainant and the witnesses he may produce." The incorporation of these requirements is intended to bulwark individual security, home and legitimate possessions. Furthermore, they were intended to curb certain prevalent abuses in the past.

Usury, is admittedly an evil which should be eradicated. While courts should cooperate with the government in an effort to eradicate this evil through proper interpretation and application of the law, it is of greater importance that the fundamental provisions of the Constitution with reference to the protection of individual rights should be upheld and preserved. The prosecution of criminals is bounden duty of government but it should be accomplished by adherence to rather than by relaxation of fundamental constitutional principles. This is said notwithstanding the apparent tendency in other countries to liberalize the application of the constitutional principle in favor of the Government to arrest the advancing tide of crime. In our case, I express the opinion that the more effective enforcement of the Usury Law could be achieved by an improvement of existing legislation, the creation of administrative agencies endowed with greater powers, and the coordination of the activities of the agencies thus created with those of the other instrumentalities of the government.

The Lawphil Project - Arellano Law Foundation

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--
Antonio L. Buensuceso Jr.

SEBASTIAN vs. CALIS

Synopsis/Syllabi

EN BANC

[A.C. No. 5118. September 9, 1999]

MARILOU SEBASTIAN, complainant, vs. ATTY. DOROTHEO CALIS, respondent.

D E C I S I O N

PER CURIAM:

For unlawful, dishonest, immoral or deceitful conduct as well as violation of his oath as lawyer, respondent Atty. Dorotheo Calis faces disbarment.

The facts of this administrative case, as found by the Commission on Bar Discipline of the Integrated Bar of the Philippines (IBP),[1] in its Report, are as follows:

Complainant (Marilou Sebastian) alleged that sometime in November, 1992, she was referred to the respondent who promised to process all necessary documents required for complainant's trip to the USA for a fee of One Hundred Fifty Thousand Pesos (P150,000.00).

On December 1, 1992 the complainant made a partial payment of the required fee in the amount of Twenty Thousand Pesos (P20,000.00), which was received by Ester Calis, wife of the respondent for which a receipt was issued.

From the period of January 1993 to May 1994 complainant had several conferences with the respondent regarding the processing of her travel documents. To facilitate the processing, respondent demanded an additional amount of Sixty Five Thousand Pesos (P65,000.00) and prevailed upon complainant to resign from her job as stenographer with the Commission on Human Rights.

On June 20, 1994, to expedite the processing of her travel documents complainant issued Planters Development Bank Check No. 12026524 in the amount of Sixty Five Thousand Pesos (P65,000.00) in favor of Atty. D. Calis who issued a receipt. After receipt of said amount, respondent furnished the complainant copies of Supplemental to U.S. Nonimmigrant Visa Application (Of. 156) and a list of questions which would be asked during interviews.

When complainant inquired about her passport, Atty. Calis informed the former that she will be assuming the name Lizette P. Ferrer married to Roberto Ferrer, employed as sales manager of Matiao Marketing, Inc. the complainant was furnished documents to support her assumed identity.

Realizing that she will be travelling with spurious documents, the complainant demanded the return of her money, however she was assured by respondent that there was nothing to worry about for he has been engaged in the business for quite sometime; with the promise that her money will be refunded if something goes wrong.

Weeks before her departure respondent demanded for the payment of the required fee which was paid by complainant, but the corresponding receipt was not given to her.

When complainant demanded for her passport, respondent assured the complainant that it will be given to her on her departure which was scheduled on September 6, 1994. On said date complainant was given her passport and visa issued in the name of Lizette P. Ferrer. Complainant left together with Jennyfer Belo and a certain Maribel who were also recruits of the respondent.

Upon arrival at the Singapore International Airport, complainant together with Jennyfer Belo and Maribel were apprehended by the Singapore Airport Officials for carrying spurious travel documents; Complainant contacted the respondent through overseas telephone call and informed him of by her predicament. From September 6 to 9, 1994, complainant was detained at Changi Prisons in Singapore.

On September 9, 1994 the complainant was deported back to the Philippines and respondent fetched her from the airport and brought her to his residence at 872-A Tres Marias Street, Sampaloc, Manila. Respondent took complainant's passport with a promise that he will secure new travel documents for complainant. Since complainant opted not to pursue with her travel, she demanded for the return of her money in the amount of One Hundred Fifty Thousand Pesos (P150,000.00).

On June 4, 1996, June 18 and July 5, 1996 respondent made partial refunds of P15,000.00; P6,000.00; and P5,000.00.

On December 19, 1996 the complainant through counsel, sent a demand letter to respondent for the refund of a remaining balance of One Hundred Fourteen Thousand Pesos (P114,000.00) which was ignored by the respondent.

Sometime in March 1997 the complainant went to see the respondent, however his wife informed her that the respondent was in Cebu attending to business matters.

In May 1997 the complainant again tried to see the respondent however she found out that the respondent had transferred to an unknown residence apparently with intentions to evade responsibility.

Attached to the complaint are the photocopies of receipts for the amount paid by complainant, applications for U.S.A. Visa, questions and answers asked during interviews; receipts acknowledging partial refunds of fees paid by the complainant together with demand letter for the remaining balance of One Hundred Fourteen Thousand Pesos (P114,000.00); which was received by the respondent.[2]

Despite several notices sent to the respondent requiring an answer to or comment on the complaint, there was no response. Respondent likewise failed to attend the scheduled hearings of the case. No appearance whatsoever was made by the respondent.[3] As a result of the inexplicable failure, if not obdurate refusal of the respondent to comply with the orders of the Commission, the investigation against him proceeded ex parte.

On September 24, 1998, the Commission on Bar Discipline issued its Report on the case, finding that:

"It appears that the services of the respondent was engaged for the purpose of securing a visa for a U.S.A. travel of complainant. There was no mention of job placement or employment abroad, hence it is not correct to say that the respondent engaged in illegal recruitment.

The alleged proposal of the respondent to secure the U.S.A. visa for the complainant under an assumed name was accepted by the complainant which negates deceit on the part of the respondent. Noted likewise is the partial refunds made by the respondent of the fees paid by the complainant. However, the transfer of residence without a forwarding address indicates his attempt to escape responsibility.

In the light of the foregoing, we find that the respondent is guilty of gross misconduct for violating Canon 1 Rule 1.01 of the Code of Professional Responsibility which provides that a lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.

WHEREFORE, it is respectfully recommended that ATTY. DOROTHEO CALIS be SUSPENDED as a member of the bar until he fully refunds the fees paid to him by complainant and comply with the order of the Commission on Bar Discipline pursuant to Rule 139-B, Sec. 6 of the Rules of Court."[4]

Pursuant to Section 12, Rule 139-B of the Rules of Court, this administrative case was elevated to the IBP Board of Governors for review. The Board in a Resolution[5] dated December 4, 1998 resolved to adopt and approve with amendment the recommendation of the Commission. The Resolution of the Board states:

"RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner in the above-entitled case, herein made part of this Resolution/Decisions as Annex "A"; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, with an amendment that Respondent Atty. Dorotheo Calis be DISBARRED for having been found guilty of Gross Misconduct for engaging in unlawful, dishonest, immoral or deceitful conduct."

We are now called upon to evaluate, for final action, the IBP recommendation contained in its Resolution dated December 4, 1998, with its supporting report.

After examination and careful consideration of the records in this case, we find the resolution passed by the Board of Governors of the IBP in order. We agree with the finding of the Commission that the charge of illegal recruitment was not established because complainant failed to substantiate her allegation on the matter. In fact she did not mention any particular job or employment promised to her by the respondent. The only service of the respondent mentioned by the complainant was that of securing a visa for the United States.

We likewise concur with the IBP Board of Governors in its Resolution, that herein respondent is guilty of gross misconduct by engaging in unlawful, dishonest, immoral or deceitful conduct contrary to Canon 1, Rule 101 of the Code of Professional Responsibility. Respondent deceived the complainant by assuring her that he could give her visa and travel documents; that despite spurious documents nothing untoward would happen; that he guarantees her arrival in the USA and even promised to refund her the fees and expenses already paid, in case something went wrong. All for material gain.

Deception and other fraudulent acts by a lawyer are disgraceful and dishonorable. They reveal moral flaws in a lawyer. They are unacceptable practices. A lawyer's relationship with others should be characterized by the highest degree of good faith, fairness and candor. This is the essence of the lawyer's oath. The lawyer's oath is not mere facile words, drift and hollow, but a sacred trust that must be upheld and keep inviolable.[6] The nature of the office of an attorney requires that he should be a person of good moral character.[7] This requisite is not only a condition precedent to admission to the practice of law, its continued possession is also essential for remaining in the practice of law.[8] We have sternly warned that any gross misconduct of a lawyer, whether in his professional or private capacity, puts his moral character in serious doubt as a member of the Bar, and renders him unfit to continue in the practice of law.[9]

It is dismaying to note how respondent so cavalierly jeopardized the life and liberty of complainant when he made her travel with spurious documents. How often have victims of unscrupulous travel agents and illegal recruiters been imprisoned in foreign lands because they were provided fake travel documents? Respondent totally disregarded the personal safety of the complainant when he sent her abroad on false assurances. Not only are respondent's acts illegal, they are also detestable from the moral point of view. His utter lack of moral qualms and scruples is a real threat to the Bar and the administration of justice.

The practice of law is not a right but a privilege bestowed by the State on those who show that they possess, and continue to possess, the qualifications required by law for the conferment of such privilege.[10] We must stress that membership in the bar is a privilege burdened with conditions. A lawyer has the privilege to practice law only during good behavior. He can be deprived of his license for misconduct ascertained and declared by judgment of the court after giving him the opportunity to be heard.[11]

Here, it is worth noting that the adamant refusal of respondent to comply with the orders of the IBP and his total disregard of the summons issued by the IBP are contemptuous acts reflective of unprofessional conduct. Thus, we find no hesitation in removing respondent Dorotheo Calis from the Roll of Attorneys for his unethical, unscrupulous and unconscionable conduct toward complainant.

Lastly, the grant in favor of the complainant for the recovery of the P114,000.00 she paid the respondent is in order.[12] Respondent not only unjustifiably refused to return the complainant's money upon demand, but he stubbornly persisted in holding on to it, unmindful of the hardship and humiliation suffered by the complainant.

WHEREFORE, respondent Dorotheo Calis is hereby DISBARRED and his name is ordered stricken from the Roll of Attorneys. Let a copy of this Decision be FURNISHED to the IBP and the Bar Confidant to be spread on the personal records of respondent. Respondent is likewise ordered to pay to the complainant immediately the amount of One Hundred Fourteen Thousand (P114,000.00) Pesos representing the amount he collected from her.

SO ORDERED.

Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, and Ynares-Santiago, JJ., concur.

Davide, Jr., C.J., and Panganiban, J., on official leave.

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[1] Records, pp. 46-49.

[2] Id. at 46-48.

[3] Id. at 48-49.

[4] Id. at 49.

[5] Id. at 45.

[6] Masinsin vs. Albano, 232 SCRA 631 (1994).

[7] Rule 138, Sec. 2 of the Revised Rules of Court.

[8] People vs. Tuanda, Adm. Case No. 3360, Jan. 30, 1990, p. 29.

[9] Melendez vs. Decena, 176 SCRA 662, 663 (1989)

[10] Arrieta vs. Llosa, 282 SCRA 248, 249 (1997).

[11] Marcelo vs. Javier, 214 SCRA 13 (1992).

[12] See Igual vs. Javier, 254 SCRA 416, 424 (1996).

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Antonio L. Buensuceso Jr.

THE LAWYER'S OATH

The Lawyers Oath, a reminder to Atty. Raul Quiroz et al.

The Lawyer's Oath

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By J. Jose L. Sabio, Jr.

The Oath: The Lawyer's Ideal

What is an oath? Webster defines it as: “A solemn appeal to God, or in a wider sense, to any sacred or revered person or sanction for the truth of an affirmation or declaration or in witness of the inviolability of a promise or undertaking.” As early as Alvarez vs. CFI, the Supreme Court explained its meaning in this wise:

In its broadest sense, an oath includes any form of attestation by which a party signifies that he is bound in conscience to perform an act faithfully and truthfully. It is an outward pledge given by the person taking it, that his attestation or promise is made under an immediate sense of his responsibility to God.

Section 17 of Rule 138 of the Rules of Court states that an applicant who has passed the required examination, or has been otherwise found to be entitled to admission to the bar, shall take and subscribed before the Supreme Court an oath of office. The new lawyer swears before a duly constituted authority as an attestation that he/she takes on the duties and responsibilities proper of a lawyer. More particularly, form 28 of the judicial standard forms prescribes the following oath to be taken by the applicant:

I___________ of ___________ do solemnly swear that I will maintain allegiance to the Republic of the Philippines; I will support its Constitution and obey laws as well as the legal orders of the duly constituted authorities therein; I will do no falsehood, nor consent to the doing of any court; I will not wittingly nor willingly promote or sue any groundless, false or unlawful suit, or give aid nor consent to the same; I will delay no man for money or malice, and will conduct myself as a lawyer according to the best of my knowledge and discretion with all good fidelity as well to the courts as to my clients; and I impose upon myself this voluntary obligations without any mental reservation or purpose of evasion. So help me God.

The taking of this oath is a condition to the admission to practice law and may only be taken before the Supreme Court by a person authorized by the high court to engage in the practice of law. And what is the nature of a lawyer's oath? In the case of Sebastian vs. Calis the Supreme Court held that: “A lawyer's oath are not mere facile words, drift and hollow, but a sacred trust that must be upheld and kept inviolable.” The substance and gravity behind these words may be understood in the light of the substance and gravity behind the oath being taken. In a sense, the oath embodies the ideals by which a lawyer lives by in the practice of the legal profession. This is why the lawyer's oath has been likened to a condensed version of the canons of professional responsibility. This seems to have been confirmed in Endaya vs. Oca, where it was held that: “the lawyer's oath embodies the fundamental principles that guide every member of the legal fraternity. From it springs the lawyer's duties and responsibilities that any infringement thereof can cause his disbarment, suspension or other disciplinary actions.”

In the words of the Supreme Court, an oath is any form of attestation by which a party signifies that he is bound in conscience to perform an act faithfully and truthfully. What then does a lawyer promise to perform faithfully and truthfully when he takes on the oath upon being admitted to the practice of law? It is the very practice of his duties and responsibilities as a lawyer. The gravity of the oath is grounded on two important things: on the gravity of a lawyer's duties and on the fact that he makes a solemn promise before God to undertake these duties faithfully. When a great amount of trust is placed on such an office, then a corresponding sense of integrity and responsibility is expected of those who have taken on that office. The legal profession is one such office laden with a great amount of trust. In the hands of the lawyer is entrusted not only the power to steer the course of some client's personal or business future but more importantly, the very nature of the legal profession presupposes a certain moral burden that demands personal integrity. As stated by the Supreme Court:

Lawyers are expected to abide by the tenets of morality, not only upon admission to the Bar but also throughout their legal career, in order to maintain 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.

A lawyer is said to be the servant of the law and belongs to a profession to which society has entrusted the administration of law and the dispensing of justice. For this reason, a lawyer's oath impresses upon him the responsibilities of an officer of the court upon whose shoulders rest the grave responsibility of assisting courts in the proper, fair, speedy and efficient administration of justice.

In fact, it may be understood that the words contained in the oath of office summarize the main duties and responsibilities a lawyer is supposed to take on in the practice of law. In other words, every time an oath of office is taken, the person making the statement in effect states that in taking on the oath he/she promises to conscientiously fulfill the duties entrusted to his office. Section 20 of Rule 138 enumerates what these duties are. It is the duty of an attorney -

(a) To maintain allegiance to the Republic of the Philippines and to support the Constitution and obey the laws of the Philippines;

(b) To observe and maintain the respect due to the courts of justice and judicial officers;

(c) To counsel or maintain such actions or proceedings only as appearing to him to be just, and such defenses only as he believes to be honestly debatable under the law;

(d) To employ, for the purpose of maintaining the causes confided to him, such means only as are consistent with truth and honor, and never seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law;

(e) To maintain inviolate the confidence, and at every peril to himself, to preserve the secrets of his client, and to accept no compensation in connection with his clients' business except from him or with his knowledge and approval;

(f) To abstain from all offensive personality and to advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he is charged;

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

(h) Never to reject, for any consideration personal to himself, the cause of the defenseless or oppressed;

(i) In the defense of a person accused of crime, by all fair and honorable means, regardless of his personal opinion as to the guilt of the accused, to present every defense that the law permits, to the end that no person may be deprived of life or liberty, but by due process of law.

In order to fulfill these duties, every lawyer is expected to live by a certain mode of behavior now distilled in what is known as the Code of Professional Responsibility. The Code mandates upon each lawyer, as his duty to society, the obligation to obey the laws of the land and promote respect for law and legal processes. Specifically, he is forbidden to engage in unlawful, dishonest, immoral or deceitful conduct. In essence, all that is contained in this Code is succinctly summarized in the oath of office taken by every lawyer. It is of little surprise to find that in Magdaluyo vs. Nace the Supreme Court declares that the lawyer's oath is a source of obligations and violation thereof is a ground for suspension, disbarment or other disciplinary action. In the case of Businos vs. Ricafort, the Supreme Court also held that:

By swearing the lawyer's oath, an attorney becomes a guardian of truth and the rule of law, and an indispensable instrument in the fair and impartial administration of justice – a vital function of democracy, a failure of which is disastrous to society. While the duty to uphold the constitution and obey the laws is an obligation imposed upon every citizen, a lawyer assumes responsibilities over and beyond the basic requirements of good citizenship. As servant of the law, a lawyer ought to make himself an example for others to emulate. He should be possessed of and must continue to possess good moral character.

In Brion Jr. vs. Brillantes, Jr., the Supreme Court also ruled: “the lawyer's primary duty as enunciated in the attorney's oath is to uphold the constitution, obey the laws of the land and promote respect for the law and legal processes. That duty in its irreducible minimum entails obedience to the legal orders of the court.” The importance and significance in upholding the sanctity of a lawyer's oath have been highlighted by the Supreme Court in the various rulings it made involving disciplinary actions against members of the legal fraternity.

The Real World Of The Legal Practice

While it is true that these ideals by which every lawyer swears to live by remain sublime, the same ideals often hardly motivate some lawyers in the real world of legal practice. Instead of high ideals, less honorable reasons and more pragmatic considerations – often financial and material in nature – take hold of many a cynical and hardened lawyer. This has been the cause of lament and expressions of grave concern by honorable individuals, among them the late Supreme Court Chief Justice Fred Ruiz Castro. In an address before members of the legal profession, he said:

Many a legal practitioner, forgetting his sacred mission as a sworn public servant and his exalted position as an officer of the court, has allowed himself to become:

An instigator of controversy, instead of a mediator for concord and a conciliator for compromise;

A virtuoso of technicality in the conduct of litigation, instead of a true exponent of the primacy of truth and moral justice;

A mercenary purveying the benefits of his enlightened advocacy in direct proportion to a litigant's financial posture, instead of a faithful friend of the courts in the dispensation of equal justice to rich and poor alike.

Though these words were expressed some time ago, yet is is sad to note that Chief Justice Ruiz's words still ring loud and true today. The goal of remaining true to the ideals of the legal profession is hampered by the seemingly irresistible influence and pressures of modern day commercialism in almost every facet of human activity and endeavor. In various cases, the Supreme Court has denied applicant's petition to take the lawyer's oath for grave misconduct or for any serious violation of the canons of professional responsibility which puts in question the applicant's moral character. Moreover, a reading of the latest rulings of the highest tribunal would reveal the lawyer's utter disregard, if not disdain, for the lawyer's oath.

In Vitriola vs. Dasig, a case for disbarment against an official of the commission on higher education charged with gross misconduct in violation of the attorney's oath for having used her public office to secure financial spoils, the Supreme Court, in ordering respondent's disbarment, held:

The attorney's oath is the source of the obligations and duties of every lawyer and any violation thereof is a ground for disbarment, suspension, or other disciplinary action. The attorney's oath imposes upon every member of the bar the duty to delay no man for money or malice.

Said duty is further stressed in Rule 1.03 of the code of professional responsibility. Respondent's demands for sums of money to facilitate the processing of pending applications or requests before her office violates such duty, and runs afoul of the oath she took when admitted to the bar.

The affirmation by a lawyer to uphold the law was the subject in De Guzman vs. De Dios. In this case where respondent was charged for representing conflicting interest, found guilty and suspended for six months, with a warning, the highest tribunal held:

To say that lawyers must at all times uphold and respect the law is to state the obvious, but such statement can never be over-emphasized. Considering that, 'of all classes and professions, (lawyers are) most sacredly bound to uphold and respect the law', it is imperative that they live by the law.

Accordingly, lawyers who violate their oath and engage in deceitful conduct have no place in the legal profession. As a lawyer, respondent is bound by her oath to do no falsehood or consent to its commission and to conduct herself as a lawyer to the best of her knowledge and discretion. The lawyer's oath is a source of obligation and violation thereof is a ground for suspension, disbarment, or other disciplinary action. The acts of respondent Atty. De Dios are clearly in violation of her solemn oath as a lawyer that this court will not tolerate.

In Sevillano Batac, Jr., et al. vs. Atty. P. Cruz, Jr., the Supreme Court in ordering the suspension of respondent, quoted Sec. 27 of Rule 138 of the Revised Rules of Court, thus:

Section 27. Disbarment or suspension of attorneys by supreme court; grounds therefor: A member of the bar may be disbarred or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or, other gross misconduct in such office, grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude, or for any violation of the oath which he is required to take before admission to practice, or for a willful disobedience of any lawful order of a superior court, or for corruptly or willfully appearing as an attorney for a party to a case without authority so to do.

The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents or brokers, constitutes malpractice. A lawyer, under his oath, pledges himself not to delay any man for money or malice and is bound to conduct himself with all good fidelity to his client. Such was the pronouncement of the Supreme Court in ordering the disbarment of lawyer who converted the money of his client to his own personal use without her consent. The lawyer's oath exhorts law practitioners not to wittingly or willingly promote or sue any groundless, false or unlawful suit, nor give aid nor consent to the same. In Young vs. Batuegas, where respondent was suspended for six months for knowingly alleging an untrue statement of fact in his pleading, the Supreme Court said, thus:

A lawyer must be a disciple of truth. He swore upon his admission to the bar that he will 'do no falsehood nor consent to the doing of any in court' and he shall conduct himself as a lawyer according to the best of his knowledge and discretion with all good fidelity as well to the courts as to his clients. He should bear in mind that as an officer of the court his high vocation is to correctly inform the court upon the law and the facts of the case and to aid it in doing justice and arriving at a correct conclusion.

The courts, on the other hand, are entitled to expect only complete honesty from lawyers appearing and pleading before them. While a lawyer has the solemn duty to defend his client's rights and is expected to display the utmost zeal in defense of his client's cause, his conduct must never be at the expense of truth.

That a lawyer's oath are not mere facile words, drift and hollow, was applied by the Supreme Court in Vda. De Rosales vs. Ramos, where a notary public commission was revoked and respondent disqualified from being a notary public, in this manner: “where the notary public is a lawyer, a graver responsibility is placed upon him by reason of his solemn oath to obey the laws and to do no falsehood or consent to the doing of any.”

Indeed when an office entrusted with great responsibility and trust by society is violated and abused, one finds truth in the expression corruptio optimi pessima (the corruption of the best is the worst). The words of former Presiding Justice of the Court of Appeals Pompeyo Dias cannot find a more relevant application:

There are men in any society who are so self-serving that they try to make law serve their selfish ends. In this group of men, the most dangerous is the man of the law who has no conscience. He has, in the arsenal of his knowledge, the very tools by which he can poison and disrupt society and bring it to an ignoble end.

A Return to Basic Ideals

With the glaring reality of legal practice evidenced by the increasing numbers of administrative cases filed against lawyers in the Courts, it is no surprise therefore that legal ethics has been prescribed as a subject under the Mandatory Continuing Legal Education (MCLE). Moreover, of the 36 units prescribed under the MCLE, six units pertain to legal ethics. There is clearly a perceived need to instill legal ethics in the practice of the legal profession. The pressing need for legal ethics was highlighted by the Supreme Court in Endaya vs. Oca:

For practical purposes, the lawyers not only represent the law; they are the law. With their ubiquitous presence in the social milieu, lawyers have to be responsible. The problems they create in lawyering become public difficulties. To keep lawyers responsible underlies the worth of the ethics of lawyering. Indeed, legal ethics is simply the aesthetic term for professional responsibility.

Undoubtedly, faithful compliance and observance of the canons of the Code of Professional Responsibility is the main object of the MCLE. And to ensure success thereof, the Supreme Court, in its various pronouncements in administrative cases filed against lawyers, has emphasized the lawyer's basic duties and responsibilities. In a more recent ruling, the Supreme Court recapitulated the significance and importance of the oath in this wise: “This oath to which all lawyers have subscribed in solemn agreement to dedicate themselves to the pursuit of justice is not a mere ceremony or formality for practicing law to be forgotten afterwards; nor is it mere words, drift and hollow, but a sacred trust that lawyers must uphold and keep inviolable at all times. By swearing the lawyer's oath, they become guardians of truth and the rule of law, as well as instruments in the fair and impartial dispensation of justice.”

Indeed, if the legal profession is to achieve its basic ideal to render public service and serve the ends of justice, there is a need to unceasingly and constantly inculcate professional standards among lawyers. As the Supreme Court in Cordon vs. Balicanta (supra), said: “If the practice of law is to remain an honorable profession and attain its basic ideal, those enrolled in its ranks should not only master its tenets and principles, but should also in their lives accord continuing fidelity to them.”

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  This web page contains the full text of Rule 139-B - Rules of Court Disbarment and Discipline of Attorneys


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DISBARMENT & DISCIPLINE OF ATTORNEYS

Rule 139-B

    Section 1. How instituted. - Proceedings for disbarment, suspension or discipline of attorneys may be taken by the Supreme Court motu proprio, or by the Integrated Bar of the Philippines (IBP) upon the verified complaint of any person. The complaint shall state clearly and concisely the facts complained of and shall be supported by affidavits of persons having personal knowledge of the facts therein alleged and/or by such documents as may substantiate said facts.chanrobles virtua law library

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The IBP Board of Governors may, motu proprio or upon referral by the Supreme Court or by a Chapter Board of Officers, or at the instance of any person, initiate and prosecute proper charges against erring attorneys including those in the government service; Provided, however, that all charges against Justices of the Court of Tax Appeals and the Sandiganbayan, and Judges of the Court of Tax Appeals and lower courts, even if lawyers are jointly charged with them, shall be filed with the Supreme Court; Provided, further, that charges filed against Justices and Judges before the IBP, including those filed prior to their appointment in the Judiciary, shall immediately be forwarded to the Supreme Court for disposition and adjudication. chanrobles virtua law library

 Six (6) copies of the verified complaint shall be filed with the Secretary of the IBP or the Secretary of any of its chapters who shall forthwith transmit the same to the IBP Board of Governors for assignment to an investigator. (As amended by Bar Matter No. 1960). 

  A. PROCEEDINGS IN THE INTEGRATED BAR OF THE PHILIPPINES
Sec. 2. National Grievance Investigator. - The Board of Governors shall appoint from among IBP members an Investigator or, when special circumstances so warrant, a panel of three(3) investigators to investigate the complaint All Investigators shall take an oath of office in the form prescribed by the Board of Governors. A copy of the Investigator's appointment and oath shall be transmitted to the Supreme Court.

An Investigator may be disqualified by reason of relationship within the fourth degree of consanguinity or affinity to any of the parties or their counsel, pecuniary interest, personal bias, or his having acted as counsel for either party, unless the parties sign and enter upon the record their written consent to his acting as such Investigator. Where the Investigator does not disqualify himself, a party may appeal to the IBP Board of Governors, which by majority vote of the members present, there being a quorum, may order his disqualification.

Any Investigator may also be removed for cause, after due hearing, by the vote of at least six (6) members of the IBP Board Governors. The decision of the Board of Governors in all cases of disqualification or removal shall be final.

Sec. 3. Duties of the National Grievance Investigator. - The National Grievance Investigators shall investigate all complaint against members of the Integrated Bar referred to them by the IBP Board of Governors.

Sec. 4. Chapter assistance to complainant. - The proper IBP Chapter may assist the complainant(s) in the preparation and filing of his complaint(s). chanrobles virtua law library

Sec. 5. Service or dismissal. - If the complaint appears to be meritorious, the Investigator shall direct that a copy thereof be served upon the respondent, requiring him to answer the same within fifteen (15) days from the date of service. If the complaint does not merit action, or if the answer shows to the satisfaction of the Investigator that the complaint is not meritorious, the same may be dismissed by the Board of Governors upon his recommendation. A copy of the resolution of dismissal shall be furnished the complainant and the Supreme Court which may review the case motu proprio or upon timely appeal of the complainant filed within 15 days from notice of the dismissal of the complainant.

No investigation shall be interrupted or terminated by reason of the desistance, settlement, compromise, restitution, withdrawal of the charges, or failure of the complainant to prosecute the same.

Sec. 6. Verification and service of answer. - The answer shall be verified. The original and five (5) legible copies of the answer shall be filed with the Investigator, with proof of service of a copy thereof on the complainant or his counsel.

Sec. 7. Administrative counsel. - The IBP Board of Governors shall appoint a suitable member of the Integrated Bar as counsel to assist the complainant or the respondent during the investigation in case of need for such assistance.

Sec. 8. Investigation. - Upon joinder of issues or upon failure of the respondent to answer, the Investigator shall, with deliberate speed, proceed with the investigation of the case. He shall have the power to issue subpoenas and administer oaths. The respondent shall be given full opportunity to defend himself, to present witnesses on his behalf and be heard by himself and counsel. However, if upon reasonable notice, the respondent fails to appear, the investigation shall proceed ex parte.

The Investigator shall terminate the investigation within three (3) months from the date of its commencement unless extended for good cause by the Board of Governors upon prior application.

Willfull failure or refusal to obey a subpoena or any other lawful order issued by the Investigator shall be dealt with as for indirect contempt of court.  The corresponding charge shall be filed by the Investigator before the IBP Board of Governors which shall require the alleged contemnor to show cause within ten (10) days from notice. The IBP Board of Governors may thereafter conduct hearings, if necessary, in accordance with the procedure set forth in this Rule for hearings before the Investigator. Such hearing shall, as far as practicable, be terminated within fifteen (15) days from its commencement. Thereafter, the IBP Board of Governors shall within like period fifteen (15) days issue a resolution setting forth its findings and recommendations, which `shall forthwith be transmitted to the Supreme Court for final action and if warranted, the imposition of penalty.

Sec. 9. Depositions. - Depositions may be taken in accordance with the Rules of Court with leave of the investigator(s). chanrobles virtua law library

Within the Philippines, depositions may be taken before  any member of the Board of Governors, the President of any Chapter, or any officer authorized by law to administer oaths.

Depositions may be taken outside the Philippines before a diplomatic or consular representative of the Philippine Government or before any person agreed upon by the parties or designated by the Board of Governors.

Any suitable members of the Integrated Bar in the place where a deposition shall be taken may be designated by the Investigator to assist the complainant or the respondent in taking a deposition.

Sec. 10. Report of Investigator. - Not later than thirty (30) days from the termination of the investigation, the Investigator shall submit a report containing his findings of fact and recommendations to the IBP Board of Governors, together with the stenographic notes and the transcripts thereof and all the evidence presented during the investigation.  The submission of the report need not await the transcription of the stenographic notes, it being sufficient that the report reproduce substantially from the Investigator's personal notes any relevant and pertinent testimonies.

Sec. 11. Defects. - No defect in a complaint, notice, answer, or in the proceeding or the Investigator's Report shall be considered as substantial unless the Board of Governors, upon considering the whole record, finds that such defect has resulted or may result in a miscarriage of justice, in which event the Board shall take such remedial action as the circumstance may warrant, including invalidation of the entire proceedings.chanrobles virtua law library

Sec. 12. View and decision by the Board of Governors. -

(a) Every case heard by an investigator shall be reviewed by the IBP Board of Governors upon the record and evidence transmitted to it by the Investigator with his report. The decision of the Board upon such review shall be in writing and shall clearly and distinctly state the facts and the reasons on which it is based. It shall be promulgated within a period not exceeding thirty (30) days from the next meeting of the Board following the submittal of the Investigator's Report   (b) If the Board, by the vote of a majority of its total membership, determines that the respondent should be suspended from the practice of law or disbarred, it shall issue a resolution setting forth its findings and recommendations which, together with the whole record of the case, shall forthwith be transmitted to the Supreme Court for final action.   (c) If the respondent is exonerated by the Board or the disciplinary sanction imposed by it is less than suspension or disbarment (such as admonition, reprimand, or fine) it shall issue a decision exonerating respondent or imposing such sanction. The case shall be deemed terminated unless upon petition of the complainant or other interested party filed with the Supreme Court within fifteen (15) days from notice of the Board's resolution, the Supreme Court orders otherwise.   (d) Notice of the resolution or decision of the Board shall be given to all parties through their counsel. A copy of the same shall be transmitted to the Supreme Court.

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B. PROCEEDINGS IN THE SUPREME COURT
Sec. 13. Supreme Court Investigators. - In proceedings initiated motu proprio by the Supreme Court in other proceedings when the interest of justice so requires, the Supreme Court may refer the case for investigation to the Solicitor General or to any officer of the Supreme Court or judge of a lower court, in which case, the investigation shall proceed in the same manner provided in Sections 6 to 11 hereof, save that the review report of the investigation shall be conducted directly by the Supreme Court.

Sec. 14. Report of the Solicitor General or other Court designated investigator. - Based upon the evidence adduced at the investigation, the Solicitor General or other Investigator designated by the Supreme Court shall submit to the Supreme Court a resolution containing his findings of fact and recommendations together the record and all the evidence presented in the investigation for the final action of the Supreme Court.

  C. COMMON PROVISIONS
Sec. 15. Suspension of attorneys by Supreme Court. - After receipt of respondent's answer or lapse of the period therefor, the Supreme Court, motu proprio, or at the instance of the IBP Board of Governors upon the recommendation of the Investigator, may suspend an attorney from the practice of his profession for any of the causes specified in Rule 138, Section 27, during the pendency of the investigation until such suspension is lifted by the Supreme Court.chanrobles virtua law library

Sec. 16. Suspension of attorney by the Court of Appeals or Regional Trial Court. - The Court of Appeals or Regional Trial Court may suspend an attorney from practice for any of the causes named in Rule 138, Section 27, until further action of the Supreme Court in the case.

Sec. 17. Upon suspension by Court of Appeals or Regional Trial Court, further proceedings in Supreme Court. - Upon such suspension, the Court of Appeals or a Regional Trial Court shall forthwith transmit to the Supreme Court a certified copy of the order of suspension and a full statement of the facts upon which the same was based. Upon receipt of such certified copy and statement, the Supreme Court shall make a full investigation of the case and may revoke, shorten or extend the suspension, or disbar the attorney as the facts may warrant.

Sec. 18. Confidentiality. - Proceedings against attorneys shall be private and confidential. However, the final order of the Supreme Court shall be published like its decisions in other cases.

Sec. 19. Expenses. - All reasonable and necessary expenses incurred in relation to disciplinary and disbarment proceedings are lawful charges forthwith the parties may be taxed as costs. chanrobles virtua law library

Sec. 20. Effectivity and Transitory Provision. - This Rule shall take effect on June 1, 1988 and shall supersede the present Rule 139 entitled "DISBARMENT OR SUSPENSION OF ATTORNEYS".  All cases pending investigation by the Office of the Solicitor General shall be transferred to the Integrated Bar of the Philippines Board of Governors for investigation and disposition as provided in this Rule except those cases where the investigation has been substantially completed. (Bar Matter No. 356, Resolution dated April 13, 1988).

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