THIRD
DIVISION
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CYNTHIA ADVINCULA,
Complainant, - versus
- ATTY. ERNESTO M. MACABATA, Respondent. |
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A.C. No. 7204 Present: YNARES-SANTIAGO, J., Chairperson, AUSTRIA-MARTINEZ,
CALLEJO, SR., CHICO-NAZARIO, and NACHURA, JJ. Promulgated: March 7, 2007 |
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CHICO-NAZARIO, J.:
Before Us is a complaint[1]
for disbarment filed by Cynthia Advincula against respondent Atty. Ernesto M. Macabata, charging the latter with Gross
Immorality.
Complainant alleged the following:
Sometime on 1st week of
December 2004 complainant [Cynthia Advincula] seek the legal advice of the respondent
[Atty. Macabata], regarding her collectibles from Queensway Travel and
On
Again, on
In the late afternoon, complainant sent a text message to respondent informing him that she decided to refer the case with another lawyer and needs (sic) to get back the case folder from him. The communications transpired was recorded in her cellular phone and read as follows:
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Sent by complainant At |
- forget the case. I decided to refer it with other lawyer |
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replied by respondent at |
- “does this mean I can not c u anymore” (Does this mean I cannot see you anymore) |
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sent by complainant at |
- I feel bad. I can’t expect that u will take advantage of the situation. |
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Follow-up message Sent by complainant At |
- wrong to kiss a girl especially in the lips if you don’t have relationship with her. |
|
Replied by respondent At |
- “I’m veri sri. It’s not tking advantage of the situation, 2 put it rightly it s an expression of feeling. S sri” (I’m very sorry. Its not taking advantage of the situation, to put it rightly it is an expression of feeling) |
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Follow up message by respondent at |
- I’m s sri. Il not do it again. Wil u stil c me s I can show u my sincerity” (I’m so sorry. I’ll not do it again. Will you still see me so I can show you my sincerity) |
On
the following day,
Respondent
replied “talk to my lawyer in due time.” Then another message was received by
her at
In his answer,[3]
respondent admitted that he agreed to provide legal services to the complainant;
that he met with complainant on 10 February 2005 and 6 March 2005, to discuss
the relevant matters relative to the case which complainant was intending to
file against the owners of Queensway Travel and Tours for collection of a sum
of money; that on both occasions, complainant rode with him in his car where he
held and kissed complainant on the lips as the former offered her lips to him; and,
that the corner of Cooper Street and Roosevelt Avenue, where he dropped off the
complainant, was a busy street teeming with people, thus, it would have been
impossible to commit the acts imputed to him.
By way of defense, respondent further
elucidated that: 1) there was a criminal
case for Acts of Lasciviousness filed by
complainant against respondent pending before the Office of the City Prosecutor
in Quezon City; 2) the legal name of complainant is Cynthia Advincula Toriana since
she remains married to a certain Jinky Toriana because the civil case for the
nullification of their marriage was archived
pursuant to the Order dated 6 December 2000 issued by the Regional Trial
Court of Maburao, Occidental Mindoro; 3)
the complainant was living with a man not her husband; and 4) the
complainant never bothered to discuss respondent’s fees and it was respondent
who always paid for their bills every time they met and ate at a restaurant.
A hearing was conducted by the
Commission on Bar Discipline of the Integrated Bar of the Philippines (IBP) at
the
On
Thereafter, the IBP passed Resolution
No. XVII-2006-117 dated
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, with modification, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution as Annex “A”; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and considering the behavior of Respondent went beyond the norms of conduct required of a lawyer when dealing with or relating with a client, Atty. Ernesto A. Macabata is SUSPENDED from the practice of law for three (3) months.[5]
The issue to be resolved
in this case is: whether respondent committed acts that are grossly immoral or which
constitute serious moral depravity that would warrant his disbarment or
suspension from the practice of law.
Simple
as the facts of the case may be, the manner by which we deal with respondent’s actuations
shall have a rippling effect on how the standard norms of our legal
practitioners should be defined. Perhaps
morality in our liberal society today is a far cry from what it used to be. This permissiveness notwithstanding, lawyers,
as keepers of public faith, are burdened with a high degree of social
responsibility and, hence, must handle their personal affairs with greater
caution.
The Code of Professional Responsibility provides:
CANON I – x x x
Rule 1.01-- A lawyer shall not engage in unlawful, dishonest, immoral or
deceitful conduct.
CANON 7-- A lawyer shall at all times uphold the integrity and dignity of the legal
profession and support the activities of the Integrated Bar.
x x x x
Rule 7.03-- A lawyer shall not engage in conduct that adversely reflects on
his fitness to practice law, nor shall he, whether in public or private life,
behave in a scandalous manner to the discredit of the legal profession.
As may be gleaned from above, the
Code of Professional Responsibility forbids lawyers from engaging in unlawful,
dishonest, immoral or deceitful conduct.
Lawyers have been
repeatedly reminded that their possession of good moral character is a continuing condition to preserve their
membership in the Bar in good standing. The continued possession of good
moral character is a requisite condition
for remaining in the practice of law.[6]
In Aldovino v.
Pujalte, Jr.,[7] we emphasized that:
This Court has been exacting in its demand for
integrity and good moral character of members of the Bar. They are expected at all
times to uphold the integrity and dignity of the legal profession and refrain
from any act or omission which might lessen the trust and confidence reposed by
the public in the fidelity, honesty, and integrity of the legal profession.
Membership in the legal profession is a privilege. And whenever it is made to
appear that an attorney is no longer worthy of the trust and confidence of the
public, it becomes not only the right but also the duty of this Court, which
made him one of its officers and gave him the privilege of ministering within
its Bar, to withdraw the privilege.
It is the bounden duty of lawyers to adhere
unwaveringly to the highest standards of morality. The legal profession exacts from its members
nothing less. Lawyers are called upon to
safeguard the integrity of the Bar, free from misdeeds and acts constitutive of
malpractice. Their exalted positions as
officers of the court demand no less than the highest degree of morality.[8]
We explained in Barrientos v. Daarol[9]
that, “as officers of the court, lawyers must not only in fact be of good
moral character but must also be seen to be of good
moral character and leading lives in
accordance with the highest moral standards of the community.”
Lawyers are expected to abide by the tenets
of morality, not only upon admission to the Bar but also throughout their legal
career, in order to maintain their good standing in this exclusive and honored
fraternity. They may be suspended from the practice of law or disbarred for any
misconduct, even if it pertains to his private activities, as long as it shows
him to be wanting in moral character, honesty, probity or good demeanor.[10]
In Bar Matter No. 1154,[11] good moral character was defined as what a person really is, as distinguished from good
reputation, or from the opinion generally entertained of him, or the estimate
in which he is held by the public in the place where he is known. Moral character is not a subjective term but
one which corresponds to objective reality.
It should be noted that the requirement of good moral
character has four ostensible purposes, namely: (1) to protect the public; (2)
to protect the public image of lawyers; (3) to protect prospective clients; and
(4) to protect errant lawyers from themselves.[12]
In the
case at bar, respondent admitted kissing complainant on the lips.
In his Answer,[13] respondent
confessed, thus:
27. When she was about to get off the car, I said can I kiss you goodnight. She offered her left cheek and I kissed it and with my left hand slightly pulled her right face towards me and kissed her gently on the lips. We said goodnight and she got off the car.
x x x x
35. When I stopped my car I said okay. I saw her offered (sic) her left cheek and I lightly kissed it and with my right hand slightly pulled her right cheek towards me and plant (sic) a light kiss on her lips. There was no force used. No intimidation made, no lewd designs displayed. No breast holding was done. Everything happened very spontaneously with no reaction from her except saying “sexual harassment.”
During the hearing held on
ATTY. MACABATA:
That
time in February, we met … I fetched her I should say, somewhere along the
corner of Edsa and Kamuning because it was then raining so we are texting each
other. So I parked my car somewhere along the corner of Edsa and Kamuning and I
was there about ten to fifteen minutes then she arrived. And so I said … she
opened my car and then she went inside so I said, would you like that we have a
Japanese dinner? And she said yes, okay. So I brought her to Zensho which is
along Tomas Morato. When we were there, we discussed about her case, we ordered
food and then a little while I told her, would
it be okay for you of I (sic) order wine? She said yes so I ordered two glasses
of red wine. After that, after discussing matters about her case, so I said
… it’s about
COMM. FUNA:
February 10 iyan.
x x x x
ATTY. MACABATA:
Okay.
After that were through so I said let’s go because I have an appointment. So we
went out, we went inside my car and I said where to? Same place, she said, so
then at the same corner. So before she went down , before she opened the door
of the car, I saw her offered her left cheek. So I kissed her again.
COMM. FUNA:
Pardon?
ATTY. MACABATA:
I saw her offered her left cheek like that, so I kissed her again and then with the use of my left hand, pushed a little bit her face and then kissed her again softly on the lips and that’s it. x x x.[14] (Emphases supplied.)
It is difficult to state with
precision and to fix an inflexible standard as to what is “grossly immoral
conduct” or to specify the moral delinquency and obliquity which render a
lawyer unworthy of continuing as a member of the bar. The rule implies that what appears to be
unconventional behavior to the straight-laced may not be the immoral conduct
that warrants disbarment.[15]
In Zaguirre
v. Castillo,[16] we
reiterated the definition of immoral
conduct, as such
conduct which is so willful, flagrant, or shameless as to show indifference to
the opinion of good and respectable members of the
community. Furthermore, for such conduct to warrant disciplinary action,
the same must not simply be immoral, but grossly
immoral. It must be so corrupt as to
constitute a criminal act, or so unprincipled as to be reprehensible to a high
degree or committed under such scandalous or revolting circumstances as to
shock the common sense of decency.
The
following cases were considered by this Court as constitutive of grossly immoral
conduct:
In Toledo v. Toledo,[17] a lawyer was disbarred from the practice of
law, when he abandoned his lawful wife and cohabited with another woman who had
borne him a child.
In Obusan v. Obusan, Jr.,[18] a lawyer was disbarred after
complainant proved that he had abandoned her and maintained an adulterous relationship
with a married woman. This court declared
that respondent failed to maintain the highest degree of morality expected and
required of a member of the bar.
In Dantes v. Dantes,[19] respondent’s act of engaging in illicit
relationships with two different women during the subsistence of his marriage
to the complainant constitutes grossly immoral conduct warranting the
imposition of appropriate sanctions. Complainant’s testimony, taken in
conjunction with the documentary evidence, sufficiently established that
respondent breached the high and exacting moral standards set for members of
the law profession.
In Delos Reyes v. Aznar,[20] it was ruled that it was highly immoral
of respondent, a married man with children, to have taken advantage of his
position as chairman of the college of medicine in asking complainant, a
student in said college, to go with him to Manila where he had carnal knowledge
of her under the threat that she would flank in all her subjects in case she
refused.
In Cojuangco, Jr. v.
Palma,[21] respondent
lawyer was disbarred when he abandoned his lawful wife and three children,
lured an innocent woman into marrying him and misrepresented himself as a
“bachelor” so he could contract marriage in a foreign land.
In Macarrubo v.
Macarrubo,[22]
respondent entered into multiple marriages and then resorted to legal remedies
to sever them. There, we ruled that “[s]uch
pattern of misconduct by respondent undermines the institutions of marriage and
family, institutions that this society looks to for the rearing of our
children, for the development of values essential to the survival and
well-being of our communities, and for the strengthening of our nation as a
whole.” As such, “there can be no other
fate that awaits respondent than to be disbarred.”
In Tucay v. Tucay,[23]
respondent contracted marriage with another married woman and left complainant
with whom he has been married for thirty years.
We ruled that such acts constitute “a grossly immoral conduct and only
indicative of an extremely low regard for the fundamental ethics of his
profession,” warranting respondent’s disbarment.
In Villasanta v.
Peralta,[24]
respondent married complainant while his first wife was still alive, their
marriage still valid and subsisting. We
held that “the act of respondent of contracting the second marriage is contrary
to honesty, justice, decency and morality.”
Thus, lacking the good moral character required by the Rules of Court,
respondent was disqualified from being admitted to the bar.
In Cabrera v. Agustin,[25]
respondent lured an innocent woman into a simulated marriage and thereafter
satisfied his lust. We held that
respondent failed to maintain that degree of morality and integrity which, at
all times, is expected of members of the bar.
He is, therefore, disbarred from the practice of law.
Immorality
has not been confined to sexual matters, but includes conduct inconsistent with
rectitude, or indicative of corruption, indecency, depravity and dissoluteness;
or is willful, flagrant, or shameless conduct showing moral indifference to
opinions of respectable members of the community, and an inconsiderate attitude
toward good order and public welfare.[26]
Guided
by the definitions above, we perceived acts of kissing or beso-beso on the cheeks as mere gestures of friendship and camaraderie,[27] forms
of greetings, casual and customary. The acts of respondent, though, in turning
the head of complainant towards him and kissing her on the lips are
distasteful. However, such act, even
if considered offensive and undesirable, cannot be considered grossly immoral.
Complainant’s
bare allegation that respondent made use and took advantage of his position as
a lawyer to lure her to agree to have sexual relations with him, deserves no
credit. The burden of proof rests on the
complainant, and she must establish the case against the respondent by clear,
convincing and satisfactory proof,[28]
disclosing a case that is free from doubt as to compel the exercise by the
Court of its disciplinary power.[29] Thus, the adage that “he who asserts not he who denies, must prove.”[30] As a basic rule in evidence, the burden of
proof lies on the party who makes the allegations—ei incumbit probation, qui decit, non qui negat; cum per rerum naturam
factum negantis probation nulla sit.[31] In the case at bar, complainant miserably
failed to comply with the burden of proof required of her. A mere charge or allegation of wrongdoing
does not suffice. Accusation is not
synonymous with guilt.[32]
Moreover, while respondent admitted having
kissed complainant on the lips, the same was not motivated by malice. We come to this conclusion because right after
the complainant expressed her annoyance at being kissed by the respondent
through a cellular phone text message, respondent immediately extended an
apology to complainant also via
cellular phone text message. The exchange of text messages between complainant
and respondent bears this out.
Be it noted also that the incident happened
in a place where there were several people in the vicinity considering that
All told, as shown by the above
circumstances, respondent’s acts are not grossly immoral nor highly
reprehensible to warrant disbarment or suspension.
The question as to what disciplinary
sanction should be imposed against a lawyer found guilty of misconduct requires
consideration of a number of factors.[33]
When deciding upon the appropriate
sanction, the Court must consider that the primary purposes of disciplinary
proceedings are to protect the public; to foster public confidence in the Bar;
to preserve the integrity of the profession; and to deter other lawyers from
similar misconduct.[34]
Disciplinary proceedings are means of protecting the administration of justice
by requiring those who carry out this important function to be competent,
honorable and reliable men in whom courts and clients may repose confidence.[35]
While it is discretionary upon the Court
to impose a particular sanction that it may deem proper against an erring
lawyer, it should neither be arbitrary and despotic nor motivated by personal
animosity or prejudice, but should ever be controlled by the imperative need to
scrupulously guard the purity and independence of the bar and to exact from the
lawyer strict compliance with his duties to the court, to his client, to his
brethren in the profession and to the public.
The power to disbar or suspend ought always
to be exercised on the preservative and not on the vindictive principle, with
great caution and only for the most weighty reasons and only on clear cases of
misconduct which seriously affect the standing and character of the lawyer as
an officer of the court and member of the Bar. Only those acts which cause loss of moral
character should merit disbarment or suspension, while those acts which neither
affect nor erode the moral character of the lawyer should only justify a lesser
sanction unless they are of such nature and to such extent as to clearly show
the lawyer’s unfitness to continue in the practice of law. The dubious character of the act charged as
well as the motivation which induced the lawyer to commit it must be clearly
demonstrated before suspension or disbarment is meted out. The mitigating or aggravating circumstances
that attended the commission of the offense should also be considered.[36]
Censure or reprimand is usually meted out for an isolated act
of misconduct of a lesser nature. It is also imposed for some minor infraction
of the lawyer’s duty to the court or the client.[37] In the Matter
of Darell
Based on the
circumstances of the case as discussed and considering that this is respondent’s
first offense, reprimand would suffice.
We laud complainant’s effort to seek
redress for what she honestly believed to be an affront to her honor. Surely, it was difficult and agonizing on her
part to come out in the open and accuse her lawyer of gross immoral conduct. However, her own assessment of the incidents
is highly subjective and partial, and surely needs to be corroborated or
supported by more objective evidence.
WHEREFORE, the
complaint for disbarment against respondent Atty. Ernesto Macabata, for alleged
immorality, is hereby DISMISSED. However, respondent is hereby REPRIMANDED to be more prudent and cautious
in his dealing with his clients with a
STERN WARNING that a more severe sanction will be imposed on him for any
repetition of the same or similar offense in the future.
SO ORDERED.
|
|
MINITA V. CHICO-NAZARIOAssociate Justice |
WE
CONCUR:
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson
Associate Justice Associate Justice
ANTONIO EDUARDO B. NACHURA
Associate Justice
[1] Rollo, pp. 1-2.
[2]
[3]
[4]
[5]
[6] Mortel v. Aspiras 100 Phil.
586, 592 (1956); Cordova v. Cordova, A.C. No. 3249,
[7] A.C. No. 5082,
[8] Ui v. Bonifacio, 388 Phil. 691, 708 (2000).
[9] A.C. No. 1512,
[10] Rural Bank of Silay, Inc. v. Pilla, 403 Phil. 1, 9 (2001).
[11] In the Matter of the Disqualification of Bar Examinee Haron S. Meling in the 2002 Bar Examinations and for Disciplinary Action as Member of the Philippine Shari’a Bar, B.M. No. 1154, 8 June 2004, 431 SCRA 146.
[12] Dantes
v. Dantes, A.C. No. 6486,
[13] Rollo, pp. 27, 35.
[14] TSN,
[15] Ui v. Bonifacio, supra note 8.
[16] 446 Phil. 861, 867 (2003).
[17] 117 Phil. 768, 776 (1963).
[18] 213 Phil. 437, 440 (1984).
[19] Supra note 12 at 588.
[20] A.C. No. 1334,
[21] A.C. No. 2474,
[22] A.C. No. 6148,
[23] A.C. No. 5170,
[24] 101 Phil. 313, 314 (1957).
[25] 106 Phil. 256, 259 (1960).
[26] Madredijo
v. Loyao, Jr., 375 Phil. 1, 17
(1999); Alfonso v. Juanson, A.M. No. RTJ-92-904,
[27] Atty. Aquino v. Judge Acosta, 429 Phil. 498, 510 (2002).
[28] Angeles
v. Figueroa, A.C. No. 5050,
[29] Reyes
v. Wong, Adm. Case No. 547,
[30] Angeles v. Figueroa, supra note 28.
[31] Uytengsu
III v. Baduel, Adm. Case No. 5134,
[32] Boyboy v. Yabut, Jr., A.C. No. 5225, 29 April 2003,401 SCRA 622, 627.
[33] Agpalo, LEGAL ETHICS (4th Ed., 1989), p. 445.
[34] In
the Matter of a Member of the Bar of the Supreme Court of Delaware Joel D.
Tenenbaum,
[35] Ting-Dumali
v. Torres, A.C. No. 5161,
[36]
[37]
[38] 428 N.E. 2 d 786 (