EN
BANC
|
ZOILO ANTONIO VELEZ, Complainant, -
versus - ATTY. LEONARD S. DE VERA, Respondent. x - - - - - - - - - - - - -
- - - - - - - - - - - - x RE:
OATH-TAKING OF ATTY. LEONARD S. DE VERA, INCOMING PRESIDENT OF THE
INTEGRATED BAR OF THE x - - - - - - - - - - - - - - - - - - - - -
- - - - x IN THE MATTER OF THE REMOVAL OF ATTY.
LEONARD S. DE VERA FROM THE IBP BOARD OF GOVERNORS AS EXECUTIVE VICE
PRESIDENT AND GOVERNOR IN THE MATTER OF THE LETTER-COMPLAINT
OF ATTY. LEONARD S. DE VERA DATED |
|
A.C. No. 6697 Bar Matter No. 1227
A.M. No. 05-5-15-SC Present: PANGANIBAN, C. J., PUNO, QUISUMBING, YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
CARPIO
MORALES, CALLEJO,
AZCUNA,
TINGA,
CHICO-NAZARIO,
GARCIA
and VELASCO
JJ. Promulgated: July
25, 2006 |
x- - - - - - - - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - -
- - - -x
Per Curiam:
Before Us are three consolidated
cases revolving around Integrated Bar of the Philippines (IBP) Governor and
Executive Vice-President (EVP) Atty. Leonard de Vera. The first pertains to a disbarment case
questioning Atty. de Vera’s moral fitness to remain as a member of the
Philippine Bar, the second refers to Atty. de Vera’s letter-request to schedule
his oath taking as IBP National President, and the third case concerns the
validity of his removal as Governor and EVP of the IBP by the IBP Board. The resolution of these cases will determine
the national presidency of the IBP for the term 2005-2007.
A.C. No. 6697
The Office of the Bar Confidant,
which this Court tasked to make an investigation, report and recommendation on
subject case,[1]
summarized the antecedents thereof as follows:
In a Complaint dated
1)
respondent’s
alleged misrepresentation in concealing the suspension order rendered against
him by the State Bar of California; and
2)
respondent’s
alleged violation of the so-called “rotation rule” enunciated in Administrative
Matter No. 491 dated
Complainant averred that the respondent, in appropriating
for his own benefit funds due his client, was found to have performed an act
constituting moral turpitude by the Hearing Referee Bill Dozier, Hearing
Department –
Complainant, likewise, contended that the respondent
violated the so-called “rotation rule” provided for in Administrative Matter
No. 491 when he transferred to IBP Agusan del Sur Chapter. He claimed that the respondent failed to meet
the requirements outlined in the IBP By-Laws pertaining to transfer of Chapter
Membership. He surmised that the
respondent’s transfer was intended only for the purpose of becoming the next
IBP National President. Complainant
prayed that the respondent be enjoined from assuming office as IBP National
President.
Meanwhile, in his Comment dated
On
Subsequently, in a Memorandum dated
Moreover, complainant added that the principle of res judicata would not apply in the case
at bar. He asserted that the first
administrative case filed against the respondent was one for his
disqualification. x x x.
Bar Matter No. 1227
A.M. No. 05-5-15-SC
As earlier
adverted to, Bar Matter No. 1227 refers to Atty. de Vera’s letter-request to this Court to
schedule his oath taking as IBP National President. A.M.
No. 05-5-15-SC, on the other hand, is a letter-report dated 19 May 2005
of IBP National President Jose Anselmo I. Cadiz (IBP President Cadiz)
furnishing this Court with the IBP’s Resolution, dated 13 May 2005, removing
Atty. De Vera as member of the IBP Board and as IBP EVP, for committing acts
inimical to the IBP Board and the IBP in general.[2]
The
controversy in Bar Matter No. 1227 and
A.M. No. 05-5-15-SC arose from the regular meeting of the IBP Board of
Governors held on
The
two IBP Governors who opposed the said Resolution approving the withdrawal of
the above-described Petition were herein respondent Governor and EVP de Vera
and Governor Carlos L. Valdez.[4]
On
On
On
On
On
On 13 May 2005, in the 20th
Regular Meeting of the Board held at the Waterfront Hotel, Cebu City, the IBP
Board, by 2/3 vote, resolved to remove Atty. de Vera as member of the IBP Board
of Governors and as IBP Executive Vice President.[10] Quoted hereunder is the dispositive portion
of said Resolution:
NOW
THEREFORE, BE IT RESOLVED, AS IT IS HEREBY RESOLVED, that Governor Leonard S.
de Vera is REMOVED as a member of the IBP Board of Governors and Executive Vice
President for committing acts inimical to the IBP Board of Governors and the
IBP, to wit:
1.
For
making untruthful statements, innuendos and blatant lies in public about the
Supreme Court and members of the IBP Board of Governors, during the Plenary
Session of the IBP 10th National Convention of Lawyers, held at
CAP-Camp John Hay Convention Center on 22 April 2005, making it appear that the
decision of the IBP Board of Governors to withdraw the PETITION docketed as
“Integrated Bar of the Philippines, Jose Anselmo I. Cadiz, et al. vs. The
Senate of the Philippines, et al., Petition for Certiorari and Prohibition With
Prayer for the Issuance of A Temporary Restraining Order or Writ of Preliminary
Injunction, S.C.-R. 165108”, was due to influence and pressure from the Supreme
Court of the
2.
For
making said untruthful statements, innuendos and blatant lies that brought the
IBP Board of Governors and the IBP as a whole in public contempt and disrepute;
3.
For
violating Canon 11 of the Code of Professional Responsibility for Lawyers which
mandates that “A lawyer shall observe and maintain the respect due to the
courts and to judicial officers and should insist on similar conduct by
others”, by making untruthful statements, innuendos and blatant lies during the
Plenary Session of the IBP 10th National Convention of Lawyers in
Baguio City;
4.
For
instigating and provoking some IBP chapters to embarrass and humiliate the IBP
Board of Governors in order to coerce and compel the latter to pursue the
aforesaid PETITION;
5.
For
falsely accusing the IBP National President, Jose Anselmo I. Cadiz, during the
Plenary Session of the 10th National Convention in Baguio City of
withholding from him a copy of Supreme Court Resolution, dated 25 January 2005,
granting the withdrawal of the PETITION,
thereby creating the wrong impression that the IBP National President
deliberately prevented him from taking the appropriate remedies with respect
thereto, thus compromising the reputation and integrity of the IBP National
President and the IBP as a whole.[11]
On 18 May 2005, Atty. de Vera aired
his sentiments to this Court by writing the then Hon. Chief Justice Hilario G.
Davide, Jr. a letter captioned as “Urgent Plea to Correct a Glaring Injustice
of the IBP Board of Governors; Vehement Protest to the Board Resolution
Abruptly Removing Atty. Leonard de Vera from the Board of Governors in Patent
Violation of Due Process; Petition to Deny/Disapprove the Completely
Unjustified and Highly Arbitrary Resolution Precipitately Ousting Atty. de Vera
from the Board of Governors in Less Than Twenty Four (24) Hours from Notice and
Judgment Without Formal Investigation.”[12]
In
the said letter, Atty. de Vera strongly and categorically denied having
committed acts inimical to the IBP and its Board. He alleged that on the basis of an unverified
letter-complaint filed by IBP Governor Rivera, the IBP Board voted to expel him
posthaste, without just cause and in complete disregard of even the minimum standards
of due process. Pertinent portions of
his letter read:
It is evident that the Board of Governors has committed a
grave and serious injustice against me especially when, as the incumbent
Executive Vice President of the IBP, I am scheduled to assume my position as
National President of the IBP on
I was denied the very basic rights of due process recognized by the Supreme Court even in administrative cases:
1. The denial of the right to answer the charges formally or in writing. The complaint against me was in writing.
2. The denial of the right to answer the charges within a reasonable period of time after receipt of the complaint.
3. The denial of the right to a fair hearing.
4. The denial of the right to confront the accuser and the witnesses against me. I challenged Gov. Rivera to testify under oath so I could question him. He refused. I offered to testify under oath so I could be questioned. My request was denied.
5. The denial of my right to present witnesses on my behalf.
6. The denial of my right to an impartial judge. Governor Rivera was my accuser, prosecutor, and judge all at the same time.
7. Gov. Rivera’s prejudgment of my case becomes even more evident because when his motion to expel me was lost in a 5-3 votes (due to his inhibition to vote), Gov. Rivera asked for another round of voting so he can vote to support his own complaint and motion to expel me.[13] (Emphasis and underscoring in original.)
On
(i)
Atty. de
Vera engaged himself in a negative media campaign and solicited resolutions
from IBP Chapters to condemn the IBP Board of Governors for its decision to
withdraw the Petition, all with the end in view of
compelling or coercing the IBP Board of Governors to reconsider the decision to
withdraw the Petition.
(ii)
Atty. de
Vera embarrassed, humiliated and maligned the IBP Board of Governors and the
IBP National President in public or during the Plenary Session at the 10th
National Convention of Lawyers.
(iii)
Rather
than pacify the already agitated ‘solicited’ speakers (at the plenary session),
Atty. de Vera “fanned the fire”, so to speak, and went to the extent of making
untruthful statements, innuendos and blatant lies about the Supreme Court and
some members of the IBP Board of Governors.
He deliberately and intentionally did so to provoke the members of the
IBP Board of Governors to engage him in an acrimonious public debate and expose
the IBP Board of Governors to public ridicule.
(iv)
Atty. de
Vera uttered untruthful statements, innuendos and blatant lies, e.g., that some
of the members of the IBP Board of Governors voted in favor of the withdrawal
of the petition (without mentioning names) because “nakakahiya kasi sa
Supreme Court, nakakaawa kasi ang Supreme Court, kasi may mga kaibigan tayo sa
Court.” He made it appear that the
IBP Board of Governors approved the resolution, withdrawing the petition, due
to “influence” or “pressure” from the Supreme Court.[15]
The IBP Board explained that Atty. de
Vera’s actuation during the Plenary Session was “the last straw that broke the
camel’s back.” He committed acts
inimical to the interest of the IBP Board and the IBP; hence, the IBP Board
decided to remove him.
On 3 June 2005, Atty. de Vera furnished
the Court with copies of resolutions and a position paper coming from various
IBP Chapters all condemning his expulsion from the IBP Board and as IBP EVP.[16]
On
On
On
In his Extended Comment[23]
dated
Atty. de Vera strongly averred that,
contrary to the utterly false and malicious charges filed against him, the
speakers at the Plenary Session of the Baguio Convention, although undeniably
impassioned and articulate, were respectful in their language and exhortations,
not once undermining the stature of the IBP in general and the IBP Board of
Governors in particular. He posited that
speaking in disagreement with the Resolution of the Board during the
Convention’s Plenary Session is not a valid cause to remove or expel a
duly-elected member of the IBP Board of Governors; and the decision to remove
him only shows that the right to freedom of speech or the right to dissent is
not recognized by the incumbent IBP Board.
Anent the charges that he accused the
National President of withholding a copy of this Court’s Resolution granting
the withdrawal of the Petition questioning the legality of Republic Act No.
9227, Atty. de Vera avowed that he made no such remarks. As regards the election of a new IBP EVP,
Atty. de Vera contended that the said election was illegal as it was contrary
to the provisions of the IBP By-Laws concerning national officers, to wit:
Section. 49. Term of office. - The President and the Executive Vice
President shall hold office for a term of two years from July 1 following their
election until 30 June of their second year in office and until their
successors shall have been duly chosen and qualified.
In
the event the President is absent or unable to act, his functions and duties
shall be performed by the Executive Vice President, and in the event of death,
resignation, or removal of the President, the Executive Vice President shall
serve as Acting President for the unexpired portion of the term. In the event of death, resignation, removal
or disability of both the President and the Executive Vice President, the Board
of Governors shall elect an Acting President to hold office for the unexpired
portion of the term or during the period of disability.
Unless
otherwise provided in these By-Laws, all other officers and employees appointed
by the President with the consent of the Board shall hold office at the
pleasure of the Board or for such term as the Board may fix.[24]
To bolster his position, Atty. de
Vera stressed that when both the President and the EVP die, resign, are
removed, or are disabled, the IBP By-Laws only provides for the election of an
Acting President and that no mention for an election for EVP was made. Thus, when such election for EVP occurs, such
is contrary to the express provision of the IBP By-Laws.
Atty. de Vera also argued that even
if he were validly removed as IBP EVP, his replacement should come from
In response to Atty. de Vera’s
averments, the 2003-2005 IBP Board, through its counsel, submitted a Reply
dated
(i)
The IBP
Board of Governors is vested with sufficient power and authority to protect
itself from an intractable member by virtue of Article VI, Section 44 of the IBP
By-Laws;
(ii)
Atty.
de Vera was removed as a member of the IBP Board and as IBP EVP not because of
his disagreement with the IBP Board’s position but because of the various acts
that he committed which the IBP Board determined to be inimical to the IBP Board
and the IBP as a whole;
(iii)
Atty.
de Vera cannot exculpate himself from liability by invoking his constitutional
right to Free Speech because, as a member of the Bar, it is his sworn duty to
observe and maintain the respect due to the courts and to judicial officers and
to insist on similar conduct by others;
(iv)
The IBP
Board, in effecting the removal of Atty. de Vera, observed the fundamental
principles of due process. As the
records would bear, Atty. de Vera was duly notified of the Regular Meeting of
the IBP Board held on 13 May 2004; was furnished a copy of Governor Rivera’s
Letter-Complaint the day before the said meeting; was furnished a copy of the
said Meeting’s Agenda; and was allowed to personally defend himself and his
accuser, Gov. Rivera;
(v)
Atty. de
Vera was validly removed because the required number of votes under Section 44
of the IBP By-Laws to remove Atty. de Vera as a member of the IBP Board and as
IBP EVP was duly complied with;
(vi)
Atty.
de Vera’s replacement as IBP EVP need not come from Eastern Mindanao Region
because: (a) the rotation rule under Article VII, Section 47, par. 2 of the IBP
By-Laws had already been complied with when Atty. de Vera, who hails from
Eastern Mindanao, was elected IBP EVP; and (b) the rotation rule need not be
enforced if the same will not be practicable, possible, feasible, doable or
viable; and, finally, that –
(vii)
Atty.
Salazar was validly elected as IBP EVP and, thus, should now be allowed to take
his oath as IBP National President.[25]
The Court’s Ruling
AC No. 6697
In his Memorandum[26]
dated
I.
WHETHER OR NOT RESPONDENT ATTORNEY LEONARD S. DEVERA (sic)
COMMITED MALPRACTICE WHICH AMOUNTED TO MORAL T[U]RPITUDE IN THE STATE BAR OF
CALIFORNIA AND IN THE PHILIPPINES, IN THE COURSE OF HIS PRACTICE OF LAW.
II.
WHETHER OR NOT THE OATH OF OFFICE AS LAWYER IS ATTACHED TO
THE PERSON OF ATTORNEY LEONARD S. DEVERA (sic) WHEREVER HE MAY GO AND NOT
NECESSARILY BOUND BY THE TERRITORIAL JURISDICTION OF THE PHILIPPINES.
III.
WHETHER OR NOT THERE IS SUBSTANTIAL EVIDENCE TO PROVE THE
MORAL T[U]RPITUDE, AS BASIS FOR DISBARMENT OF RESPONDENT IN AN ADMINISTRATIVE
PROCEEDING.
IV.
WHETHER OR NOT RES JUDICATA APPLIES IN THIS CASE, DUE TO
ADMIN. CASE NO. [6052][27]
The
disposition of the first three related issues hinges on the resolution of the
fourth issue. Consequently, we will
start with the last issue.
A.C.
No. 6052 is not a bar to the filing of the present administrative case.
In disposing of the question of res judicata, the Bar Confidant opined:
To reiterate, the instant case for suspension and/or
disbarment against respondent Leonard De Vera is grounded on the following:
1)
respondent’s alleged misrepresentation in concealing
the suspension order rendered against him by the State Bar in
2)
respondent’s alleged violation of the so-called
“rotation rule” enunciated in Administrative Matter No. 491 dated
It appears that the complainant already raised the
said issues in an earlier administrative case against the respondent. Verily, these issues were already argued upon
by the parties in their respective pleadings, and discussed and ruled upon by
this Court in its Decision dated 11 December 2003 in Administrative Matter No.
6052 (In Re: Petition to Disqualify Atty. Leonard de Vera).
As such, with respect to the first issue, this Court
held that:
“As for the administrative complaint filed against
him by one of his clients when he was practicing law in California, which in
turn compelled him to surrender his California license to practice law, he
maintains that it cannot serve as basis for determining his moral qualification
(or lack of it) to run for the position he is aspiring for. He explains that there is as yet no final
judgment finding him guilty of the administrative charge, as the records relied
upon by the petitioners are mere preliminary findings of a hearing referee which
are recommendatory findings of an IBP Commissioner on Bar Discipline which are
subject to the review of and the final decision of the Supreme Court. He also stresses that the complainant in the
“On the administrative complaint that was filed
against respondent De Vera while he was still practicing law in California, he
explained that no final judgment was rendered by the California Supreme Court
finding him guilty of the charge. He
surrendered his license to protest the discrimination he suffered at the hands
of the investigator and he found it impractical to pursue the case to the
end. We find these explanations
satisfactory in the absence of contrary proof.
It is a basic rule on evidence that he who alleges a fact has the burden
to prove the same. In this case, the petitioners
have not shown how the administrative complaint affects respondent De Vera's
moral fitness to run for governor.
On the other hand, as regards
the second issue:
“Petitioners
contend that respondent de Vera is disqualified for the post because he is not
really from
The contention has no merit. Under the last
paragraph of Section 19, Article II, a lawyer included in the Roll of Attorneys
of the Supreme Court can register with the particular IBP Chapter of his
preference or choice, thus:
xxx
It is clearly stated in the aforequoted section of
the By-Laws that it is not automatic that a lawyer will become a member of the
chapter where his place of residence or work is located. He has the discretion
to choose the particular chapter where he wishes to gain membership. Only when
he does not register his preference that he will become a member of the Chapter
of the place where he resides or maintains office. The only proscription in
registering one's preference is that a lawyer cannot be a member of more than
one chapter at the same time.
The same is provided in Section 29-2 of the IBP
By-Laws. In fact, under this Section, transfer of IBP membership is allowed as
long as the lawyer complies with the conditions set forth therein, thus:
xxx
The only condition required under the foregoing rule
is that the transfer must be made not less than three months prior to the
election of officers in the chapter to which the lawyer wishes to transfer.
In the case at bar, respondent De Vera requested the
transfer of his IBP membership to Agusan del Sur on
In the case of Romulo
G. Dinsay vs. Atty. Leopoldo D. Cioco (Administrative Case No. 2995, 27
November 1996), this Court declared that:
“The doctrine of res judicata applies only to
judicial or quasi-judicial proceedings and not to the exercise of the [Court’s]
administrative powers.”
In the said case, respondent
Clerk of Court Cioco was dismissed from service for grave misconduct highly
prejudicial to the service for surreptitiously substituting the bid price in a
Certificate of Sale from P3,263,182.67 to only P730,000.00. Thereafter a complaint for disbarment was
filed against the respondent on the basis of the same incident. Respondent, interposing res judicata, argued that he may no longer be charged on the basis
of the same incident. This Court held
that while the respondent is in effect being indicted twice for the same
misconduct, this does not amount to double jeopardy as both proceedings are
admittedly administrative in nature.
This Court qualified that, in the first case, the respondent was
proceeded against as an erring court personnel under the Court’s supervisory
power over courts while, in the second case, he was disciplined as a lawyer
under the Court’s plenary authority over membersof the legal profession.
In
subsequent decisions of this Court, however, it appears that res judicata still applies in
administrative cases. Thus, in the case
of Atty. Eduardo C. De Vera vs. Judge
William Layague (Administrastive Matter No. RTJ-93-986), this Court ruled
that:
“While double jeopardy does not lie in
administrative cases, it would be contrary to equity and substantial justice to
penalize respondent judge a second time for an act which he had already
answered for.”
Likewise, in the recent case of Executive Judge Henry B. Basilia vs. Judge Amado L. Becamon, Lolita
“Applying
the principle of res judicata or bar by prior judgment, the present
administrative case becomes dismissible.
xxx
Under the
said doctrine, a matter that has been adjudicated by a court of competent
jurisdiction must be deemed to have been finally and conclusively settled if it
arises in any subsequent litigation between the same parties and for the same
cause. It provides that
[a] final
judgment on the merits rendered by a court of competent jurisdiction is
conclusive as to the rights of the parties and their privies; and constitutes
an absolute bar to subsequent actions involving the same claim, demand, or
cause of action. Res judicata is based
on the ground that the party to be affected, or some other with whom he is in
privity, has litigated the same matter in the former action in a court of
competent jurisdiction, and should not be permitted to litigate it again.
This
principle frees the parties from undergoing all over again the rigors of
unnecessary suits and repetitious trials.
At the same time, it prevents the clogging of court dockets. Equally important, res judicata stabilizes
rights and promotes the rule of law.”
In the instant administrative case, it is clear that
the issues raised by the complainant had already been resolved by this Court in
an earlier administrative case. The
complainant’s contention that the principle of res judicata would not apply in the case at bar as the first
administrative case was one for disqualification while the instant
administrative complaint is one for suspension and/or disbarment should be
given least credence. It is worthy to
note that while the instant administrative complaint is denominated as one for
suspension and/or disbarment, it prayed neither the suspension nor the
disbarment of the respondent but instead merely sought to enjoin the respondent
from assuming office as IBP National President.[28]
Contrary to
the findings of the Bar Confidant, Adm. Case No. 6052 entitled, “In Re: Petition to
Disqualify Atty. Leonard de Vera, on Legal and Moral Grounds, From Being
Elected IBP Governor for Eastern Mindanao in the May 31 IBP Election” and promulgated on 11 December 2003
does not constitute a bar to the filing of Adm. Case No. 6697. Although the parties in the present
administrative case and in Adm. Case
No. 6052 are identical, their capacities in these cases and the issues
presented therein are not the same, thereby barring the application of res
judicata.
In order that the principle of res
judicata may be made to apply, four essential conditions must concur,
namely: (1) the judgment sought to bar the new action must be final; (2) the
decision must have been rendered by a court having jurisdiction over the
subject matter and the parties; (3) the disposition of the case must be a judgment
or order on the merits, and (4) there must be between the first and second
action identity of parties, identity of subject matter, and identity of causes
of action.[29] In the absence of any one of these elements,
Atty. de Vera cannot argue res judicata in his favor.
It
is noteworthy that the two administrative cases involve different subject
matters and causes of action. In Adm.
Case No. 6052, the subject matter was the qualification of Atty. de Vera to run
as a candidate for the position of IBP Governor for
Finally,
the two administrative cases do not seek the same relief. In the first case, the complainants sought to
prevent Atty. de Vera from assuming his post as IBP Governor for
The
distinctions between the two cases are far from trivial. The previous case was resolved on the basis
of the parties’ rights and obligations under the IBP By-laws. We held therein that Atty. de Vera cannot be
disqualified from running as Regional Governor as there is nothing in the
present IBP By-laws that sanctions the disqualification of candidates for IBP
governors. Consequently, we stressed
that the petition had no firm ground to stand on. Likewise, we held that the complainants
therein were not the proper parties to bring the suit as the IBP By-laws
prescribes that only nominees - which the complainants were not - can file with
the IBP President a written protest against the candidate. The Court’s statement, therefore, that Atty.
de Vera cannot be disqualified on the ground that he was not morally fit was
mere obiter dictum. Precisely, the IBP By-laws do not allow for
pre-election disqualification proceedings; hence, Atty. de Vera cannot be
disqualified on the basis of the administrative findings of a hearing officer
of the State Bar of California suspending him from the practice of law for
three years. We held in that case that –
There is
nothing in the By-Laws which explicitly provides that one must be morally fit
before he can run for IBP governorship. For one, this is so because the
determination of moral fitness of a candidate lies in the individual judgment
of the members of the House of Delegates. Indeed, based on each member's
standard of morality, he is free to nominate and elect any member, so long as
the latter possesses the basic requirements under the law. For another,
basically the disqualification of a candidate involving lack of moral fitness
should emanate from his disbarment or suspension from the practice of law by
this Court, or conviction by final judgment of an offense which involves moral
turpitude.[30]
What this simply means is that absent a final judgment by the Supreme Court in a proper case declaring otherwise, every lawyer aspiring to hold the position of IBP Regional Director is presumed morally fit. Any person who begs to disagree will not be able to find a receptive audience in the IBP through a petition for disqualification but must first file the necessary disbarment or suspension proceeding against the lawyer concerned.
And
this is precisely what complainant has chosen to do in the instant case. As his petition is sufficient in form and
substance, we have given it due course pursuant to Rule 138 of the Rules of
Court. And, considering that this case
is not barred by the prior judgment in Adm. Case No. 6052, the only issue left
for consideration is whether or not Atty. de Vera can be suspended or disbarred
under the facts of the case and the evidence submitted by complainant.
The recommendation of the hearing officer of the State
Bar of
In the case of the Suspension From The Practice of Law In The
Territory of Guam of Atty. Leon G. Maquera,[31] we were confronted with the question of
whether or not a member of the Philippine Bar, who is concomitantly an attorney
in a foreign jurisdiction and who was suspended from the practice of law in
said foreign jurisdiction, can be sanctioned as member of the Philippine Bar
for the same infraction committed in the foreign jurisdiction.
We take the issue in Atty. Maquera one notch higher in the
case of Atty. de Vera who was admitted to the practice of law in a foreign
jurisdiction (State Bar of California, U.S.A.) and against whom charges were
filed in connection with his practice in said jurisdiction. However, unlike the case of Atty. Maquera, no
final judgment for suspension or disbarment was meted against Atty. de Vera
despite a recommendation of suspension of three years as he surrendered his
license to practice law before his case could be taken up by the Supreme Court
of California.
In Maquera, we emphasized that the judgment of suspension against a
Filipino lawyer in a foreign jurisdiction does not automatically result in his
suspension or disbarment in the
The Maquera ruling is consistent with Rule 39, Section 48, of the Rules
of Court which provides:
Sec. 48. Effect
of foreign judgments or final orders. - The effect of a judgment or final order
of a tribunal of a foreign country, having jurisdiction to render the judgment
or final order is as follows:
x
x x x
(b) In
case of a judgment or final order against a person, the judgment or final order
is presumptive evidence of a right as between the parties and their successors
in interest by a subsequent title.
In either case, the judgment or final order
may be repelled by evidence of a want of jurisdiction, want of notice to the
party, collusion, fraud, or clear mistake of law or fact.
In Philippine Aluminum Wheels, Inc. v. Fasgi Enterprises, Inc.,[32]
we explained that “[a] foreign judgment is presumed to be valid and binding in
the country from which it comes, until a contrary showing, on the basis of a
presumption of regularity of proceedings and the giving of due notice in the
foreign forum.”
In herein case, considering that
there is technically no foreign judgment to speak of, the recommendation by the
hearing officer of the State Bar of California does not constitute prima facie evidence of unethical
behavior by Atty. de Vera. Complainant
must prove by substantial evidence the facts upon which the recommendation by
the hearing officer was based. If he is
successful in this, he must then prove that these acts are likewise unethical
under Philippine law.
There is substantial evidence of malpractice on the
part of Atty. de Vera independent of the recommendation of suspension by the
hearing officer of the State Bar of
Section 27 of Rule 138 of our Rules
of Court states:
SEC. 27. Disbarment
or suspension of attorneys by Supreme Court; grounds therefor. – A member
of the bar may be disbarred or suspended from his office as attorney by the
Supreme Court for any deceit, malpractice, or other gross misconduct in such
office, grossly immoral conduct, or by reason of his conviction of a crime
involving moral turpitude, or for any violation of the oath which he is
required to take before admission to practice, or for a wilful disobedience of
any lawful order of a superior court, or for corruptly or wilfully appearing as
an attorney for a party to a case without authority so to do. The practice of soliciting cases at law for
the purpose of gain, either personally or through paid agents or brokers,
constitutes malpractice.
The disbarment or suspension of a member of the Philippine
Bar by a competent court or other disciplinary agency in a foreign jurisdiction
where he has also been admitted as an attorney is a ground for his disbarment
or suspension if the basis of such action includes any of the acts hereinabove
enumerated.
The judgment, resolution or order of the foreign court or
disciplinary agency shall be prima facie evidence
of the ground for disbarment or suspension.[33]
Disciplinary action against a lawyer
is intended to protect the court and the public from the misconduct of officers
of the court and to protect the administration of justice by requiring that
those who exercise this important function shall be competent, honorable and
reliable men in whom courts and clients may repose confidence.[34] The statutory enunciation of the grounds for
disbarment on suspension is not to be taken as a limitation on the general
power of courts to suspend or disbar a lawyer.
The inherent power of the court over its officers cannot be restricted.[35]
Malpractice ordinarily refers to any
malfeasance or dereliction of duty committed by a lawyer. Section 27 gives a special and technical
meaning to the term “Malpractice.”[36] That meaning is in consonance with the
elementary notion that the practice of law is a profession, not a business.[37]
Unprofessional conduct in an attorney
is that which violates the rules on ethical code of his profession or which is
unbecoming a member of that profession.[38]
Now, the undisputed facts:
1.
An
administrative case against Atty. de Vera was filed before the State Bar of
California, docketed then as Adm. Case No. 86-0-18429. It arose from an insurance case Atty. de Vera
handled involving Julius Willis, III who figured in an automobile accident in
1986. Atty. de Vera was authorized by
the elder Willis (father of Julius who was given authority by the son to
control the case because the latter was then studying in
2.
The
Hearing referee in the said administrative case recommended that Atty. de Vera
be suspended from the practice of law for three years;[40]
and
3.
Atty.
de Vera resigned from the California Bar which resignation was accepted by the
Supreme Court of California.[41]
Atty. de Vera vehemently insists that
the foregoing facts do not prove that he misappropriated his client’s funds as
the latter’s father (the elder Willis) gave him authority to use the same and
that, unfortunately, the hearing officer did not consider this explanation
notwithstanding the fact that the elder Willis testified under oath that he
“expected de Vera might use the money for a few days.”
By
insisting that he was authorized by his client’s father and attorney-in-fact to
use the funds, Atty. de Vera has impliedly admitted the use of the Willis funds
for his own personal use.
In fact,
Atty. de Vera did not deny complainant’s allegation in the latter’s memorandum
that he (de Vera) received US$12,000.00 intended for his client and that he
deposited said amount in his personal account and not in a separate trust
account and that, finally, he spent the amount for personal purposes.[42]
At this
point, it bears stressing that in cases filed before administrative and
quasi-judicial bodies, a fact may be deemed established if it is supported by
substantial evidence or that amount of relevant evidence which a reasonable
mind might accept as adequate to justify a conclusion.[43] It means such evidence which affords a
substantial basis from which the fact in issue can be reasonably inferred.[44]
Beyond
doubt, the unauthorized use by a lawyer of his client’s funds is highly
unethical. Canon 16 of the Code of
Professional Responsibility is emphatic about this, thus:
CANON 16. A LAWYER SHALL HOLD IN TRUST ALL MONEYS AND PROPERTIES OF HIS CLIENT THAT MAY COME TO HIS POSSESSION.
Rule 16.01. A lawyer shall account for all money or property collected or received for or from the client.
Rule 16.02. A lawyer shall keep the funds of each client separate and apart from his own and those of others kept by him.
In Espiritu v. Ulep[45]
we held that –
The relation between attorney and client is highly fiduciary in nature. Being such, it requires utmost good faith, loyalty, fidelity and disinterestedness on the part of the attorney. Its fiduciary nature is intended for the protection of the client.
The Code of Professional Responsibility mandates every lawyer to hold in trust all money and properties of his client that may come into his possession. Accordingly, he shall account for all money or property collected or received for or from the client. Even more specific is the Canon of Professional Ethics:
The lawyer should refrain from any action whereby for his personal benefit or gain he abuses or takes advantage of the confidence reposed in him by his client.
Money of the client or collected for the client or other trust property coming into the possession of the lawyer should be reported and accounted for promptly and should not under any circumstances be commingled with his own or be used by him.
Consequently, a lawyer's failure to return upon demand the funds or property held by him on behalf of his client gives rise to the presumption that he has appropriated the same for his own use to the prejudice of, and in violation of the trust reposed in him by, his client. It is a gross violation of general morality as well as of professional ethics; it impairs the public confidence in the legal profession and deserves punishment.
Lawyers who misappropriate the funds entrusted to them are in gross violation of professional ethics and are guilty of betrayal of public confidence in the legal profession. Those who are guilty of such infraction may be disbarred or suspended indefinitely from the practice of law. (Emphases supplied.)
In
herein case, as it is admitted by Atty. de Vera himself that he used his
client’s money for personal use, he has unwittingly sealed his own fate since
this admission constitutes more than substantial evidence of malpractice. Consequently, Atty. de Vera now has the
burden of rebutting the evidence which he himself supplied.
In his defense, Atty. de Vera claims that he was duly
authorized by the elder Willis to use the funds intended for the latter’s
son. Atty. de Vera also points out that
he had restituted the full amount of US$12,000.00 even before the filing of the
administrative case against him in the State Bar of California.[46]
Aside
from these self-serving statements, however, we cannot find anywhere in the
records of this case proof that indeed Atty. de Vera was duly authorized to use
the funds of his client. In Radjaie v. Atty. Alovera[47]
we declared that –
When the integrity of a member of the bar is
challenged, it is not enough that he denies the charges against him; he must
meet the issue and overcome the evidence against him. He must show proof that he still maintains
that degree of morality and integrity which at all times is expected of him.
Atty.
de Vera cannot rely on the statement made by the hearing officer that the elder
Willis had indeed testified that he “expected de Vera might use the money for a
few days.” As Atty. de Vera had vigorously objected to the admissibility of the
document containing this statement, he is now estopped from relying thereon. Besides, that the elder Willis “expected de
Vera might use the money for a few days” was not so much an acknowledgment of
consent to the use by Atty. de Vera of his client’s funds as it was an
acceptance of the probability that Atty. de Vera might, indeed, use his client’s
funds, which by itself did not speak well of the character of Atty. de Vera or
the way such character was perceived.
In
the instant case, the act of Atty. de Vera in holding on to his client’s money
without the latter’s acquiescence is conduct indicative of lack of integrity
and propriety. It is clear that Atty. de
Vera, by depositing the check in his own account and using the same for his own
benefit is guilty of deceit, malpractice, gross misconduct and unethical
behavior. He caused dishonor, not only
to himself but to the noble profession to which he belongs. For, it cannot be denied that the respect of
litigants to the profession is inexorably diminished whenever a member of the
profession betrays their trust and confidence.[48] Respondent violated his oath to conduct
himself with all good fidelity to his client.
Nevertheless,
we do not agree with complainant’s plea to disbar respondent from the practice
of law. The power to disbar must be
exercised with great caution.[49] Where any lesser penalty can accomplish the
end desired, disbarment should not be decreed.
In
Mortera v. Pagatpatan,[50]
we imposed upon Atty. Pagatpatan two years suspension from his practice of law
for depositing the funds meant for his client to his personal account without
the latter’s knowledge. In Reyes v. Maglaya;[51] Castillo v. Taguines;[52]
Espiritu v. Atty. Cabredo IV,[53]
the respondents were meted one year suspension each for failing to remit to
their clients monies in the amounts of P1,500.00; P500.00, and P51,161.00,
respectively, received by them for their clients without the latter’s
permission. In Dumadag v. Atty. Lumaya,[54]
we indefinitely suspended respondent for failure to remit to his client the
amount of the measly sum of P4,344.00 representing the amount received
pursuant to a writ of execution.
Considering the amount involved here – US$12,000.00, we believe that the
penalty of suspension for two (2) years is appropriate.
Transferring IBP membership to a chapter where the
lawyer is not a resident of is not a ground for his suspension or disbarment
Complainant
insists that Atty. de Vera’s transfer of membership from the
In Adm. Case No. 6052, we held that Atty. de
Vera’s act of transferring to another IBP Chapter is not a ground for his
disqualification for the post of IBP Governor as the same is allowed under
Section 19 of the IBP By-Laws with the qualification only that the transfer be
made not less than three months immediately preceding any chapter election.
As it was perfectly within Atty. de Vera’s right to
transfer his membership, it cannot be said that he is guilty of unethical
conduct or behavior. And while one may
incessantly argue that a legal act may not necessarily be ethical, in herein
case, we do not see anything wrong in transferring to an IBP chapter that --
based on the rotation rule – will produce the next IBP EVP who will
automatically succeed to the National Presidency for the next term. Our Code of Professional Responsibility as well
as the Lawyer’s Oath do not prohibit nor punish lawyers from aspiring to be IBP
National President and from doing perfectly legal acts in accomplishing such
goal.
Bar Matter No. 1227
Administrative
Matter No. 05-5-15-SC
To resolve Bar Matter No. 1227 and Administrative Matter No. 05-5- 15-SC, the following issues must be addressed:
I.
Whether the IBP
Board of Governors acted with grave abuse of discretion in removing Atty. de
Vera as Governor and EVP of the IBP on
i.
Whether the IBP
Board of Governors complied with administrative due process in removing Atty.
de Vera.
ii.
Whether the IBP
removed Atty. De Vera for just and valid cause.
II.
Whether Governor
Salazar was validly elected as EVP of the IBP on
The IBP Board observed due process in its removal of
Atty. de Vera as IBP Governor
We start the discussion with the
veritable fact that the IBP Board is vested with the power to remove any of its
members pursuant to Section 44, Article VI of the IBP By-Laws, which states:
Sec.
44. Removal of members.
– If the Board of Governors should determine after proper inquiry that any of
its members, elective or otherwise, has for any reason become unable to perform
his duties, the Board, by resolution of the Majority of the remaining members,
may declare his position vacant, subject to the approval of the Supreme Court.
Any member of the Board, elective or
otherwise, may be removed for cause, including three consecutive absences from
Board meetings without justifiable excuse, by resolution adopted by two-thirds
of the remaining members of the Board, subject to the approval of the Supreme
Court.
In case of any vacancy in the office of Governor for whatever cause, the delegates from the region shall by majority vote, elect a successor from among the members of the Chapter to which the resigned governor is a member to serve as governor for the unexpired portion of the term. (Emphasis supplied)
Under
the aforementioned section, a member of the IBP Board may be removed for cause
by resolution adopted by two-thirds (2/3) of the remaining members of the
Board, subject to the approval of this Court.
In the main, Atty. de Vera questions his removal from the Board of Governors on procedural and substantive grounds. He argues that he was denied “very basic rights of due process recognized by the Honorable Court even in administrative cases” like the right to answer formally or in writing and within reasonable time, the right to present witnesses in his behalf, the right to a fair hearing. Atty. de Vera protests the fact that he was not able to cross-examine the complainant, IBP Gov. Romulo H. Rivera (Atty. Rivera) and that Atty. Rivera voted as well for his expulsion which made him accuser, prosecutor and judge at the same time. Atty. de Vera emphasized the fact that Atty. Rivera initially inhibited himself from voting on his own motion. However, when his inhibition resulted in the defeat of his motion as the necessary 2/3 votes could not be mustered, Atty. Rivera asked for another round of voting so he could vote to support his own motion.
The IBP Board counters that since its
members were present during the plenary session, and personally witnessed and
heard Atty. de Vera’s actuations, an evidentiary or formal hearing was no
longer necessary. Since they all
witnessed and heard Atty. de Vera, it was enough that he was given an
opportunity to refute and answer all the charges imputed against him. They emphasized that Atty. de Vera was given
a copy of the complaint and that he was present at the Board Meeting on
We are in agreement with the IBP Board.
First, it needs stressing that the constitutional provision
on due process safeguards life, liberty and property.[55] It cannot be said that the position of EVP
of the IBP is property within the constitutional sense especially since there
is no right to security of tenure over said position as, in fact, all that is
required to remove any member of the board of governors for cause is a
resolution adopted by 2/3 of the remaining members of the board.
Secondly, even if the right of due process could be
rightfully invoked, still, in administrative proceedings, the essence of due
process is simply the opportunity to explain one’s side.[56] At the outset, it is here emphasized that the
term “due process of law” as used in the Constitution has no fixed meaning for
all purposes due “to the very nature of the doctrine which, asserting a
fundamental principle of justice rather than a specific rule of law, is not
susceptible of more than one general statement.”[57] The phrase is so elusive of exact
apprehension,[58] because
it depends on circumstances and varies with the subject matter and the
necessities of the situation.[59]
Due process of law in administrative cases is not identical
with “judicial process” for a trial in court is not always essential to due
process. While a day in court is a
matter of right in judicial proceedings, it is otherwise in administrative
proceedings since they rest upon different principles. The due process clause guarantees no
particular form of procedure and its requirements are not technical. Thus, in certain proceedings of
administrative character, the right to a notice or hearing are not essential to
due process of law. The constitutional
requirement of due process is met by a fair hearing before a regularly
established administrative agency or tribunal.
It is not essential that hearings be had before the making of a
determination if thereafter, there is available trial and tribunal before which
all objections and defenses to the making of such determination may be raised
and considered. One adequate hearing is
all that due process requires. What is
required for “hearing” may differ as the functions of the administrative bodies
differ.[60]
The right to cross-examine is not an indispensable aspect of
due process.[61] Nor is
an actual hearing always essential[62]
especially under the factual milieu of this case where the members of the IBP
Board -- upon whose shoulders the determination of the cause for removal of an
IBP governor is placed subject to the approval of the Supreme Court – all
witnessed Atty. de Vera’s actuations in the IBP National Convention in
question.
It is undisputed that Atty. de Vera received a copy of the
complaint against him and that he was present when the matter was taken
up. From the transcript of the
stenographic notes of the
Atty. de Vera, however, additionally
questions the fact that Atty. Rivera, who authored the complaint against him,
also voted for his expulsion making him accuser, prosecutor and judge at the
same time. Atty. de Vera likewise
laments the fact that Atty. Rivera initially inhibited himself from voting but
when this resulted in the defeat of his motion for lack of the necessary 2/3
vote, he agreed to another round of voting and that, this time, he voted in
favor of his motion.
For the
record, of the nine governors comprising the IBP Board, six voted for Atty. de
Vera’s expulsion (including Atty. Rivera) while 3 voted against it (including
Atty. de Vera).
Section 44 (second paragraph) of the IBP By-Laws provides:
Any member of the Board, elective or otherwise, may be removed for cause, including three consecutive absences from Board meetings without justifiable excuse, by resolution adopted by two-thirds of the remaining members of the Board, subject to the approval of the Supreme Court. (Emphasis supplied.)
Under the rules, a resolution for expulsion of an IBP
Governor is done via a resolution
adopted by 2/3 of the remaining members.
The phrase “remaining members” refers to the members exclusive of the
complainant member and the respondent member.
The reason therefore is that such members are interested parties and are
thus presumed to be unable to resolve said motion impartially. This being the case, the votes of Attys.
Rivera and de Vera should be stricken-off which means that only the votes of
the seven remaining members are to be counted.
Of the seven remaining members, five voted for expulsion while two voted
against it which still adds up to the 2/3 vote requirement for expulsion.
The IBP Board removed Atty. de Vera as IBP Governor for
just and valid cause
All the concerned parties to this
case agree that what constitutes cause for the removal of an IBP Governor has
not been defined by Section 44 of the IBP By-Laws albeit it includes three
consecutive absences from Board meetings without justifiable excuse. Thus, the IBP Board argues that it is vested
with sufficient power and authority to protect itself from an intractable
member whose removal was caused not by his disagreement with the IBP Board but
due to various acts committed by him which the IBP Board considered as inimical
to the IBP Board in particular and the IBP in general.
Atty. de Vera, on the other hand,
insists that speaking in disagreement with the
Resolution of the Board during the Convention’s Plenary Session is not a valid
cause to remove or expel a duly-elected member of the IBP Board of Governors
and the decision to remove him only shows that the right to freedom of speech
or the right to dissent is not recognized by the IBP Board.
After weighing the arguments of the
parties and in keeping with the fundamental objective of the IBP to discharge
its public responsibility more effectively, we hereby find that Atty. de Vera’s
removal from the IBP Board was not capricious or arbitrary.
Indubitably, conflicts and disagreements
of varying degrees of intensity, if not animosity, are inherent in the internal
life of an organization, but especially of the IBP since lawyers are said to
disagree before they agree.
However,
the effectiveness of the IBP, like any other organization, is diluted if the
conflicts are brought outside its governing body for then there would be the
impression that the IBP, which speaks through the Board of Governors, does not
and cannot speak for its members in an authoritative fashion. It would accordingly
diminish the IBP’s prestige and repute with the lawyers as well as with the
general public.
As
a means of self-preservation, internecine conflicts must thus be adjusted
within the governing board itself so as to free it from the stresses that
invariably arise when internal cleavages are made public.
The
doctrine of majority rule is almost universally used as a mechanism for
adjusting and resolving conflicts and disagreements within the group after the
members have been given an opportunity to be heard. While it does not efface conflicts,
nonetheless, once a decision on a contentious matter is reached by a majority
vote, the dissenting minority is bound thereby so that the board can speak with
one voice, for those elected to the governing board are deemed to implicitly
contract that the will of the majority shall govern in matters within the
authority of the board.[63]
The
IBP Board, therefore, was well within its right in removing Atty. de Vera as
the latter’s actuations during the 10th National IBP Convention were
detrimental to the role of the IBP Board as the governing body of the IBP. When
the IBP Board is not seen by the bar and the public as a cohesive unit, it
cannot effectively perform its duty of helping the Supreme Court enforce the code
of legal ethics and the standards of legal practice as well as improve the
administration of justice.
In
view of the importance of retaining group cohesiveness and unity, the expulsion
of a member of the board who insists on bringing to the public his disagreement
with a policy/resolution approved by the majority after due discussion, cannot
be faulted. The effectiveness of the
board as a governing body will be negated if its pronouncements are resisted in
public by a board member.
Indeed,
when a member of a governing body cannot accept the voice of the majority, he
should resign therefrom so that he could criticize in public the majority
opinion/decision to his heart’s content; otherwise, he subjects himself to
disciplinary action by the body.
The removal of Atty. de Vera as member of the Board of
Governors ipso
facto meant his removal
as EVP as well
The removal
of Atty. de Vera as member of the Board of Governors ipso facto
meant his removal as EVP as well. Section 47, Article VII of the By-Laws of
the IBP provides:
SEC.
47. National Officers.
– The Integrated Bar of the
Thus, to be EVP of the IBP, one must
necessarily be a member of IBP Board of Governors. Atty. de Vera’s removal from
the Board of Governors, automatically disqualified him from acting as IBP EVP.
To insist otherwise would be contrary to Section 47 of the IBP By-Laws.
The Court will not interfere with the Resolution of
the IBP Board to remove Atty. de Vera since it was rendered without grave abuse
of discretion
While
it is true that the Supreme Court has been granted an extensive power of
supervision over the IBP,[64]
it is axiomatic that such power should be exercised prudently. The power of supervision of the Supreme Court
over the IBP should not preclude the IBP from exercising its reasonable
discretion especially in the administration of its internal affairs governed by
the provisions of its By-Laws. The IBP
By-Laws were precisely drafted and promulgated so as to define the powers and
functions of the IBP and its officers, establish its organizational structure,
and govern relations and transactions among its officers and members. With these By-Laws in place, the Supreme
Court could be assured that the IBP shall be able to carry on its day-to-day
affairs, without the Court’s interference.
It
should be noted that the general charge of the affairs and activities of the
IBP has been vested in the Board of Governors.
The members of the Board are elective and representative of each of the
nine regions of the IBP as delineated in its By-Laws.[65] The Board acts as a collegiate body and
decides in accordance with the will of the majority. The foregoing rules serve to negate the
possibility of the IBP Board acting on the basis of personal interest or malice
of its individual members. Hence, the
actions and resolutions of the IBP Board deserve to be accorded the disputable
presumption[66] of
validity, which shall continue, until and unless it is overcome by substantial
evidence and actually declared invalid by the Supreme Court. In the absence of any allegation and
substantial proof that the IBP Board has acted without or in excess of its
authority or with grave abuse of discretion, we shall not be persuaded to
overturn and set aside the Board’s action or resolution.
There
is no question that the IBP Board has the authority to remove its members as
provided in Article VI, Section 44[67]
of the IBP By-Laws. Issue arises only as
to whether the IBP Board abused its authority and discretion in resolving to
remove Atty. de Vera from his post as an IBP Governor and EVP. As has been previously established herein,
Atty. de Vera’s removal from the IBP Board was in accordance with due process
and the IBP Board acted well within the authority and discretion granted to it
by its By-Laws. There being no grave
abuse of discretion on the part of the IBP Board, we find no reason to
interfere in the Board’s resolution to remove Atty. de Vera.
The election of Atty. Salazar by the IBP Board as IBP
EVP in replacement of Atty. De Vera was conducted in accordance with the
authority granted to the Board by the IBP By-Laws
In the same manner, we find no reason
to disturb the action taken by the 2003-2005 IBP Board of Governors in holding
a special election to fill-in the vacant post resulting from the removal of
Atty. de Vera as EVP of the IBP since the same is a purely internal matter,
done without grave abuse of discretion, and implemented without violating the
Rules and By-Laws of the IBP.
With the removal of Atty. de Vera
from the Board, by virtue of the IBP Board Resolution dated
Article VI, Section
41(g) of the IBP By-Laws expressly grants to the Board the authority to fill
vacancies, however arising, in the IBP positions, subject to the provisions of
Section 8 of the Integration Rule,[68] and Section 11
(Vacancies),[69]
Section 44 (Removal of members),[70] Section 47 (National
officers),[71]
Section 48 (other officers),[72] and Section 49 (Terms of
Office)[73] of the By-Laws. The IBP Board has specific and sufficient
guidelines in its Rules and By-Laws on how to fill-in the vacancies after the
removal of Atty. de Vera. We have faith
and confidence in the intellectual, emotional and ethical competencies of the
remaining members of the 2005-2007 Board in dealing with the situation within
the bounds of the IBP Rules and By-Laws.
The election by the 2003-2005 IBP
Board of Governors of a new EVP, who will assume the Presidency for the term
2005-2007, was well within the authority and prerogative granted to the Board
by the IBP By-Laws, particularly Article VII, Section 47, which provides that
“[t]he EVP shall automatically become President for the next succeeding
term.” The phrase “for the next
succeeding term” necessarily implies that the EVP that should succeed Atty.
Cadiz as IBP President for the next succeeding term (i.e., 2005-2007)
should come from the members of the 2003-2005 IBP Board of Governors. Hence, in A.M. No. 05-7-19-SC, we restrained
now IBP EVP Feliciano Bautista from assuming the position of Acting President
because we have yet to resolve the question as to who shall succeed Atty. Cadiz
from the 2003-2005 IBP Board of Governors.
Accordingly, the elections of
Governor Santiago on
Neither
can this Court give credence to the argument of Atty. De Vera that, assuming
his removal as IBP Governor and EVP was valid, his replacement as IBP EVP
should come from Eastern Mindanao Region pursuant to the rotation rule set
forth in Article VII, Section 47, of the IBP By-Laws.
According to Article VII, Section 47,
of the IBP By-Laws, the EVP shall be chosen by the Board of Governors from
among the nine Regional Governors, as much as practicable, on a rotation
basis. This is based on our
pronouncements in Bar Matter 491, wherein we ruled:
“ORDER
x x x x
3. The
former system of having the IBP President and Executive Vice-President elected
by the Board of Governors (composed of the governors of the nine [9] IBP
regions) from among themselves (as provided in Sec. 47, Art. VII, Original IBP
By-Laws) should be restored. The right of automatic succession by the Executive
Vice-President to the presidency upon the expiration of their two-year term
(which was abolished by this Court's resolution dated
4. At the
end of the President's two-year term, the Executive Vice-President shall
automatically succeed to the office of president. The incoming board of
governors shall then elect an Executive Vice-President from among themselves. The
position of Executive Vice-President shall be rotated among the nine (9) IBP
regions. One who has served as president may not run for
election as Executive Vice-President in a succeeding election until after the
rotation of the presidency among the nine (9) regions shall have been
completed; whereupon, the rotation shall begin anew.
x x x x
(Emphasis Supplied)”
In Bar Matter 491, it is clear that
it is the position of IBP EVP which is actually rotated among the nine Regional
Governors. The rotation with respect to the Presidency is merely a result of
the automatic succession rule of the IBP EVP to the Presidency. Thus, the
rotation rule pertains in particular to the position of IBP EVP, while the
automatic succession rule pertains to the Presidency. The rotation with respect
to the Presidency is but a consequence of the automatic succession rule
provided in Section 47 of the IBP By-Laws.
In the case at bar, the rotation rule was duly complied with since upon the election of Atty. De Vera as IBP EVP, each of the nine IBP regions had already produced an EVP and, thus, the rotation was completed. It is only unfortunate that the supervening event of Atty. de Vera’s removal as IBP Governor and EVP rendered it impossible for him to assume the IBP Presidency. The fact remains, however, that the rotation rule had been completed despite the non-assumption by Atty. de Vera to the IBP Presidency.
Moreover, the application of the rotation rule is not a license to disregard the spirit and purpose of the automatic succession rule, but should be applied in harmony with the latter. The automatic succession rule affords the IBP leadership transition seamless and enables the new IBP National President to attend to pressing and urgent matters without having to expend valuable time for the usual adjustment and leadership consolidation period. The time that an IBP EVP spends assisting a sitting IBP President on matters national in scope is in fact a valuable and indispensable preparation for the eventual succession. It should also be pointed out that this wisdom is further underscored by the fact that an IBP EVP is elected from among the members of the IBP Board of Governors, who are serving in a national capacity, and not from the members at large. It is intrinsic in the IBP By-Laws that one who is to assume the highest position in the IBP must have been exposed to the demands and responsibilities of national leadership.
It would therefore be consistent with the purpose and spirit of the automatic succession rule for Governor Salazar to assume the post of IBP President. By electing the replacement EVP from among the members of the 2003-2005 Board of Governors, the IBP benefits from the experience of the IBP EVP of 2003-2005 – in this case, Governor Salazar – who would have served in a national capacity prior to his assumption of the highest position.
It will also be inconsistent with the purpose and
spirit of the automatic succession rule if the EVP for the term 2003-2005 will
be elected exclusively by the members of the House of Delegates of the
In any case, Section 47 of the IBP Rules uses the phrase “as much as practicable” to clearly indicate that the rotation rule is not a rigid and inflexible rule as to bar exceptions in compelling and exceptional circumstances.
It is in view of the foregoing that the argument
advanced by Atty. De Vera that the IBP national presidency should be assumed by
a nominee from
We therefore rule that the IBP Board
of Governors acted in accordance with the IBP By-Laws, in electing Atty. Salazar
as IBP EVP and in ensuring a succession in the leadership of the IBP. Had the Board of Governors not done so, there
would have been no one qualified to assume the Presidency of the IBP on
WHEREFORE,
in view of the foregoing, we rule as follows:
1)
SUSPEND
Atty. Leonard de Vera in A.C. No. 6697 from the practice of law for TWO (2)
YEARS, effective from the finality of this Resolution. Let a copy of this Resolution be attached to
the personal record of Atty. Leonard de Vera and copies furnished the
Integrated Bar of the
2)
DISMISS the
letter-complaint of Atty. Leonard de Vera, dated 18 May 2005, in A.M. No.
05-5-15-SC, praying for the disapproval of the Resolution, dated 13 May 2005,
of the Board of Governors of the Integrated Bar of the Philippines removing him
from his posts as Governor and Executive Vice President of the Integrated Bar
of the Philippines, the said Resolution having been rendered without grave
abuse of discretion;
3)
AFFIRM the election by the Board of Governors of Atty. Jose
Vicente B. Salazar as Executive Vice President of the Integrated Bar of the
Philippines for the remainder of the term 2003-2005, such having been conducted
in accordance with its By-Laws and absent any showing of grave abuse of
discretion; and
4)
DIRECT Atty. Jose Vicente B. Salazar to immediately take
his oath of office and assume the Presidency of the Integrated Bar of the
Philippines for the term 2005-2007 in accordance with the automatic succession
rule in Article VII, Section 47 of the IBP By-Laws, upon receipt of this
Resolution.
SO ORDERED.
REYNATO S. PUNOAssociate Justice |
LEONARDO A. QUISUMBINGAssociate Justice |
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CONSUELO YNARES-SANTIAGOAssociate Justice |
ANGELINA SANDOVAL-GUTIERREZAssociate Justice |
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ANTONIO T. CARPIO Associate Justice |
MA. ALICIA AUSTRIA-MARTINEZ Associate Justice |
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RENATO C. CORONA Associate Justice
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CONCHITA
CARPIO MORALES Associate Justice
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ROMEO J.
CALLEJO, SR. Associate Justice |
ADOLFO S.
AZCUNA Associate Justice |
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DANTE O.
TINGA Associate Justice |
MINITA V.
CHICO-NAZARIO Associate Justice |
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CANCIO C. GARCIA
Associate Justice |
PRESBITERO
J. VELASCO, JR. Associate Justice |
[1] Records (A.C. No. 6697), Report and Recommendation, pp. 1-3.
[2] Rollo (A.M. No. 05-5-15-SC), pp. 1-9.
[3]
[4]
[5]
[6] Records (B.M. No. 1227), p. 3.
[7] Rollo (A.M. No. 05-5-15-SC), pp. 1-9.
[8] Records (A.C. No. 6697), pp. 177-178.
[9] Rollo (A.M. No. 05-5-15-SC), pp. 8-9.
[10]
[11]
[12]
[13]
[14]
[15]
[16]
[17]
[18]
[19]
[20]
[21]
[22]
[23]
[24]
[25] Id. Reply dated
[26] Records of A.C. No. 6697, pp. 239-252.
[27]
[28] Records, pp. 368-371.
[29]
Bachrach Corporation v. Court of Appeals, 357 Phil. 483, 491
(1998).
[30] Atty. Garcia v. Atty. De Vera, 463 Phil. 385, 413 (2003).
[31] B.M. No. 793,
[32] G.R. No. 137378,
[33] As amended by SC Res. dated
[34] De Jesus Paras v. Vailoces, 111 Phil. 569, 572 (1961).
[35] Royong v. Oblena, 117 Phil. 865, 875 (1963); Quingwa v. Puno, 125 Phil. 831, 838 (1967).
[36] Act No. 2828, amending Sec. 21 of Act No. 190.
[37] 2 R-CL. 1097 cited in In re Tagorda, 23 March 1929, 53 Phil. 37, 42; Malcolm, J., Jayme v. Bualan, 58 Phil. 422, 425 (1933); Arce v. National Bank, 62 Phil. 569, 571 (1935).
[38] Note 14, 7 C.S.S. 743.
[39] Records, pp. 38-39.
[40] Records (A.E. 6697), pp. 292.
[41]
[42] See complainant’s Memorandum and compare the same with Atty. de Vera’s Reply Memorandum (Records, pp. 239-240 and pp. 254-255).
[43] Ang Tibay v. Court of Industrial Relations, 69 Phil. 635, 640 (1940).
[44]
Rubberworld (Phils.) Inc. v. National
Labor Relations Commission, G.R. No. 75704,
[45] A.C.
No. 5808,
[46] “Respondent’s Manifestation,” Records, pp. 302-303.
[47] 392 Phil. 1, 17 (2000).
[48] Busiños v. Atty. Ricafort, 347 Phil. 687, 694 (1997).
[49] Alitagtag v. Atty. Garcia, 451 Phil. 420, 426 (2003).
[50] A.C. No. 4562,
[51] 313 Phil. 1 (1995).
[52] 325 Phil. 1 (1996).
[53] 443 Phil. 24 (2003).
[54] 390 Phil. 1 (2000).
[55]
Section 1, Article III,
Constitution – “No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be denied the equal protection
of the law.” See also Lumiqued v. Hon. Exevea, 346 Phil. 807, 828 (1997).
[56] Lumiqued
v. Hon. Exevea, id.
[57] W.W. Willowby, THE CONSTITUTIONAL LAW OF THE UNITED STATES, Sec. 1113.
[58] Turning
v.
[59] Forbes
v. Chuoco Tiaco, 16 Phil. 534, 572 (1910), citing Moyer v. Peabody, 212
[60] See Juan F. Rivera, LAW OF PUBLIC ADMINISTRATION, p. 822.
[61] Guzman v.National University, 226 Phil. 596, 603 (1986).
[62] Lumiqued v. Hon. Exevea, supra note 55.
[63] Gokongwei, Jr. v. Securites and Exchange
Commission, G.R. No. L-45911,
[64] As recognized in In Re: Petition to Disqualify Atty. Leonard de Vera on Legal and Moral Grounds, From Being Elected IBP Governor for Eastern Mindanao in the May 31 IBP Election, Adm. Case No. 6052, 418 SCRA 27, 39-42.
[65] Article VI, Section 37 of the IBP By-Laws.
[66] Rule 131, Section 3 defines disputable presumptions as presumptions that “are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence.”
[67] Sec. 44. Removal of members. – If the Board of
Governors should determine after proper inquiry that any of its members,
elective or otherwise, has for any reason become unable to perform his duties,
the Board, by resolution of the Majority of the remaining members, may declare
his position vacant, subject to the approval of the Supreme Court.
Any
member of the Board, elective or otherwise, may be removed for cause, including
three consecutive absences from Board meetings without justifiable excuse, by
resolution adopted by two-thirds of the remaining members of the Board, subject
to the approval of the Supreme Court.
x x x
[68] Sec. 8. Delegates. – The President shall concurrently be the Delegate of the Chapter to the House of Delegates. The Vice President shall be his alternate, unless the chapter is entitled to have more than one Delegate, in which case the Vice President shall also be a Delegate. Additional Delegates and alternates shall in proper cases be elected by the Board.
[69] Sec. 11. Vacancies. – Except as otherwise provided in these By-Laws, whenever the term of an office or position, whether elective or appointive, is for a fixed period, the person chosen to fill the vacancy therein shall serve only for the unexpired portion of the term.
[70] Sec. 44.
Removal of members. – If the Board of Governors should determine after
proper inquiry that any of its members, elective or otherwise, has for any
reason become unable to perform his duties, the Board, by resolution of the
Majority of the remaining members, may declare his position vacant, subject to
the approval of the Supreme Court.
Any
member of the Board, elective or otherwise, may be removed for cause, including
three consecutive absences from Board meetings without justifiable excuse, by
resolution adopted by two-thirds of the remaining members of the Board, subject
to the approval of the Supreme Court.
In case of any vacancy in the office of Governor for whatever cause, the delegates from the region shall by majority vote, elect a successor from among the members of the Chapter to which the resigned governor is a member to serve as governor for the unexpired portion of the term.
[71]
Sec. 47. National Officers. – The Integrated
Bar of the
The Executive Vice President shall automatically become President for the next succeeding term. The Presidency shall rotate among the nine Regions.
[72] Sec. 48. Other officers. – Other officers and employees as the Board may require shall be appointed by the President with the consent of the Board. Such officers and employees need not be members of the Integrated Bar.
[73] Sec. 49. Terms of office. – The President and the Executive Vice President shall hold office for a term of two years from July 1 following their election until June 30 of their second year in office and until their successors shall have been duly chosen and qualified.
In the event the President is absent or unable to act, his functions and duties shall be performed by the Executive Vice President, and in the event of the death, resignation, or removal of the President, the Executive Vice President shall serve as Acting President for the unexpired portion of the term. In the event of the death, resignation, removal or disability of both the President and the Executive Vice President, the Board of Governors shall elect an Acting President to hold office for the unexpired portion of the term or during the period of disability.
Unless otherwise provided in these By-Laws, all other officers and employees appointed by the President with the consent of the Board shall hold office at the pleasure of the Board or for such term as the Board may fix.