Title
Yumol, Jr. v. Ferrer, Sr.
Case
A.C. No. 6585
Ponente
CHICO-NAZARIO, J :
Decision Date
2005-04-21

SECOND DIVISION

A.C. No. 6585. April 21, 2005.

TOMAS B. YUMOL, JR., FELIX S. VENTIC, ELMER L. MANIEGO and JAKE M. MAGCALAS, complainants, vs. ATTY. ROBERTO R. FERRER, SR., respondent.

D E C I S I O N

CHICO-NAZARIO, J p:

This is a complaint for disbarment filed by Atty. Tomas B. Yumol, Jr., Felix S. Ventic, Elmer L. Maniego and Jake Magcalas against Atty. Roberto R. Ferrer, Sr., for grave misconduct.

At all time material to the controversy, complainants were employees of the Commission on Human Rights (CHR), Atty. Yumol as Officer-in-Charge, Mr. Ventic, as Supervising Special Investigator, Mr. Maniego as Special Investigator III and Mr. Magcalas as Special Investigator I. Respondent Atty. Ferrer, Sr., held the position of Attorney IV, also of the Commission.

On 17 September 2001, Mrs. Ma. Cecilia Mallari-Dy sought the assistance of the CHR for the alleged kidnapping of her child Jianzil Irish M. Dy by her husband, John Burt Dy, and the coercive act of the latter in the transfer of her account with the Porac Rural Bank. Acting on this, Atty. Ferrer, a Senior Legal Officer of the CHR, issued the two (2) Orders quoted below.

The facts as above stated resulted in the heated altercation that took place on 28 September 2001 between respondent and one Mr. John Burt Dy, whereby the latter accused the CHR of conniving with his wife, Mrs. Ma. Cecilia Dy, and of destroying his reputation and good name at the Porac Rural Bank. Atty. Yumol, being the OIC Head of the Office, asked Mr. Dy if he could substantiate his accusations. The latter showed him two (2) alleged Office Orders dated 18 and 19 September 2001, both signed by respondent. AEHTIC

The Order dated 18 September 2001, reads:

Acting on the Complaint of Ma. CECILIA M. DY, and pursuant to the provision of the Family Code that children five (5) years and below should remain under the custody of the mother, in relation to the provisions of thethe respondent is hereby ordered to give custody of JIANZIL IRISH M. DY to the maternal custody of the aforementioned mother.

Wherefore, premises considered, pending investigation of the above-entitled case, the custody of JIANZIL IRISH M. DY is hereby awarded to the mother MA. CECILIA M. DY.

SO ORDERED.

City of San Fernando, Pampanga, September 18, 2001.

(SGD)ATTY. ROBERTO R. FERRER, SR.

Senior Legal Counsel

The Order dated 19 September 2001, reads:

Before this Commission is the Complaint filed by complainant wife for alleged kidnapping of her child Jianzil Irish M. Dy which happened last August 22, 2001 and the coercive mean (sic) of respondent JOHN BURT DY in the transfer of the complainant's cash deposit with the Porac Rural Bank.

Finding the allegations to (sic) sufficiently established, custody of the child was awarded to the Complainant and properly executed with the aid of the Sangguniang Barangay of Sta. Cruz, Porac, Pampanga and the elements of the Porac PNP.

Likewise, we find that there had been coercion in the transfer of complainant (sic) deposit in bank, which was already effected by the aforementioned Rural Bank.

NOW, THEREFORE, pending the final determination of this above-entitled case and by virtue of the powers and authority granted this Commission under Sec. 18, Article 13 of thethe Rural Bank of Porac is hereby ordered to reinstate the account of complainant MA. CECILIA M. DY.

SO ORDERED.

City of San Fernando, Pampanga, September 19, 2001.

(SGD) ATTY. ROBERTO R. FERRER, SR.

Senior Legal Counsel IV

Complainants Yumol and Magcalas, together with their staff, witnessed the incident and were surprised to see the two (2) orders allegedly issued by respondent. Mr. Dy also informed Atty. Yumol that the two (2) orders were already enforced by respondent himself and his co-employees V. Rigor and E. Enolpe, Police Officer Larucom and the Barangay Captain of their place. TASCDI

Concerned by the acts of respondent, Atty. Yumol tried to clarify the matter by writing a letter to the Bank Manager stating, thus:

In reference to the order of Atty. Roberto R. Ferrer, Sr., Attorney IV of this Regional Office, the undersigned would like to inform your good office that the Commission's participation on the matter is limited only to extend legal guidance/assistance considering that the disagreement of spouses John Burt Dy and Ma. Cecilia M. Dy is a family matter. Hence, you are being advised to disregard Atty. Ferrer's order dated September 19, 2001.

Moreover, the said case is not officially docketed as part of Human Rights cases handled by the Commission.

I hope this will clarify any misinterpretation of the Commission's mandate.

On 28 September 2001, Yumol required respondent to explain within seventy-two (72) hours the unauthorized issuance of the said Orders.

It turned out later that respondent was engaged in private practice by handling private cases in courts and other quasi-judicial bodies as shown by the following pleadings:

Pleadings Where Filed
Motion for Reconsideration in MTC, Sta. Ana,
Sp. Proc. No. 01-01 Candaba, Pampanga.
Motion for Issuance of MTC, San Fernando,
Mandatory Injunction Pampanga
Urgent Ex-Parte Motion For RTC-58, Angeles City
Issuance of Preliminary
Injunction
Petition MTC, Sta. Ana, Candaba,
Pampanga
Motion for Reconsideration RTC-58, Angeles City
and Urgent Motion for
Postponement
Motion for Reconsideration - do -
Motion for Reconsideration - do -
On Denial of the Release of
Vehicle
Addendum to Motion For Re- - do -
Investigation
Motion to Set Motion For - do -
Release of Vehicle

Several documents were also notarized by respondent, viz:

Documents Where Used
Reply of Norberto San Angel MTC, Branch 1, San
dated October 16, 2001 Fernando, Pampanga
Sworn Statement dated Civil Case No. 8509 filed
October 15, 2001 of May with the MTC San Fernando,
Paule, et al. Pampanga
Criminal Complaint of Myrna Criminal Case No. 01-1401
Bulaon MTC of Sta. Ana, Pampanga
Reply Affidavit of Myrna Bulaon - do-
Affidavit of Renato P. Canlas Special Proceeding No. 01-01 at
MTC, Sta. Ana, Pampanga

Respondent also attended court hearings as shown in the following Minutes of Hearings, Orders, and Transcripts of Stenographic Notes:

Date Time Case No. Court
March 2, 2001 9:00 A.M. 01-01 (Ejectment Case) MTC/Sta. Ana, Pampanga
April 23, 2001 1:30 P.M. Crim. Case No. 00-1164 RTC-58 Angeles City
March 6, 2001 2:15 P.M. Crim. Case No. 00-1164 - do -
August 3, 2001 9:00 A.M. Crim. Case No. 01-1401 MTC, Sta. Ana.
Pampanga
Sept. 7, 2001 - do - - do -
October 15, 2001 8:30 A.M. Civil Case No. 17360 RTC 42, San Frdo., Pamp.
Nov. 5, 2001 2:00 P.M. Civil Case No. 8509 MTC Branch 1, San
Fernando, Pampanga.
Nov. 27, 2001 Civil Case No. 8509 RTC 58, Angeles City
Dec. 6, 2001 2:00 P.M. Civil Case No. 8509 MTC Br. I, San Fernando,
Pampanga.

During those times that respondent attended hearings, he declared in his Daily Time Records (DTRs) that he was present at the Office as shown by the DTRs attached to the complaint.

The actuations of the respondent provoked the filing of several criminal cases against him, to wit:

(1) Falsification of Public Documents,

(2) Usurpation of Functions, and

(3) Violation of

Still, despite the cases filed against him, respondent continued attending hearings in different courts as demonstrated by the following photostatic copies of the Minutes of the trials of the cases:

Dates Time Court
October 24, 2002 2:00 PM MTC Arayat, Pampanga
November 7, 2002 2:00 PM - do -
January 17, 2003 9:00 AM MTC Sta. Ana, Pampanga
February 10, 2003 9:00 AM MTC Arayat, Pampanga
March 10, 2003 9:00 AM - do
March 24, 2003 - do -
March 28, 2003 9:00 AM MTC Sta. Ana, Pampanga
May 9, 2003 9:00 AM - do -
May 29, 2003 8:30 AM RTC-54, Macabebe, Pampanga
June 12, 2003 2:00 PM MTC Arayat, Pampanga
June 17, 2003 MTC-4, San Frdo., Pampanga
July 17, 2003 8:30 AM RTC-54, Macabebe, Pampanga
August 26, 2003 9:00 A.M. MTC-4, San Frdo., Pampanga

Complainants maintained that all these acts constitute grave misconduct.

We referred the present case to the Integrated Bar of the Philippines (IBP) for investigation, report and investigation. EcDATH

On 04 November 2003, respondent filed a motion for extension of twenty (20) days within which to file his answer, which was granted by the Commission on Bar Discipline, IBP, Pasig City.

In his answer, respondent admitted that Mrs. Ma. Cecilia Mallari-Dy dropped by at the CHR to seek assistance regarding the recovery of her minor son and the restitution of her time deposit. He also acknowledged having issued the two orders but maintained that the same were in consonance with the powers and functions granted to all CHR lawyers. He argued that CHR lawyers, pursuant to CHR Resolution No. A-88-056 dated 8 October 1988 and CHR Resolution No. A89-109-A dated 19 July 1989, can file, appear, prosecute and represent the Commission for underprivileged victims and persons whose human rights have been violated or in need of protection in civil, criminal and administrative matters which are properly cognizable by the Commission. He likewise claimed that he was allowed by the CHR to file a petition for commission as a notary public and was commissioned on 01 December 2000. He denied having falsified his DTRs as the same were certified by complainant Atty. Yumol as Officer-In-Charge of their office and that his appearances in courts were for legal assistance as allowed in CHR Resolution No. A-88-056. Lastly, respondent insisted that the instant complaint was an offshoot of the administrative case filed by Mrs. Ma. Cecilia Mallari-Dy against Atty. Yumol and the other complainants, which prevented the issuance of a certificate of clearance to Atty. Yumol relative to his impending retirement.

In their reply, complainants claimed that respondent's commission as notary public was granted only by the CHR on 29 October 2001, and received by the CHR Region 3 on 07 November 2001, hence, the belated authority granted to him cannot be made to retroact to the notarized documents which were all done before 07 November 2001. Complainants likewise argued that respondent's act of appearing in courts as counsel is a form of private practice which is expressly prohibited by They further explained that the CHR has no authority to issue the questioned orders as it cannot try and decide cases which courts of justice or quasi-judicial bodies do. Finally, they pointed out that the complaint filed by Mrs. Dy against them was already dismissed in an Order dated 15 October 2003.

After investigative hearings, IBP Investigating Commissioner Rebecca Villanueva-Maala submitted her report, the dispositive portion of which reads:

IN VIEW OF THE FOREGOING, there is merit in the complaint and it is hereby recommended that respondent ATTY. ROBERTO R. FERRER, SR. be SUSPENDED for a period of TWO (2) YEARS from the practice of his profession as a lawyer and as a member of the bar.

On 30 July 2004, the Board of Governors of the IBP approved the recommendation of the Investigating Commissioner but modified the penalty imposed:

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 cSITDa

The issue to be resolved in this case is whether or not respondent has committed gross misconduct arising from the following alleged acts:

1. Engaging in the private practice of his profession while being a government employee;

2. Falsifying his Daily Time Records;

3. Issuing unauthorized orders; and

4. Continuously engaging in private practice even after the filing of case against him for engaging in private practice. cDTCIA

Relative to the first ground, respondent contends that CHR lawyers are authorized to engage in private practice by invoking CHR Resolution No. (III) A2002-133.

CHR Resolution No. (III) A2002-133 authorizes CHR lawyers to engage in private practice (adopting the Civil Service Commission Resolution) subject to the following conditions, to wit:

NOW THEREFORE, foregoing premises considered, the Commission hereby resolves to adopt the following policy:

Lawyers employed in the Civil Service Commission, upon written request, may be authorized to practice their profession subject to the following conditions:

1. It shall not entail any conflict of interest insofar as the functions of the Commission are concerned;

2. It shall not be in representation of a client whose cause of action is against the government;

3. It shall not involve the use of government funds or property; CDHAcI

4. It shall not impair the lawyer's efficiency in the discharge of his/her regular functions in the office, and absences incurred, if any, shall be covered by duly approved vacation leaves and pass slips;

5. It shall be subject to the provisions of

6. The lawyers can appear only in courts of law, offices of state prosecutors (Department of Justice), Office of the Ombudsman and quasi-judicial agencies decisions of which are rendered by presidential appointees;

7. Authority is for one year subject to renewal after review of the lawyer's office performance;

8. Provided, that, the commission reserves its right to revoke the said authority.

xxx xxx xxx

Recognizing that the dearth of lawyers committed to the civil service is due to the ". . . huge disparity in the income of government lawyers as compared to those employed in the private sector," the Commission on Human Rights is convinced that CHR lawyers may be authorized to engage in the practice of their profession to augment their income so as to encourage them in the government service.

NOW, THEREFORE, the Commission on Human Rights adopts the above-cited conditions to authorize, upon written request, to practice their profession. However, it is the Commission (sic) position that said authority should be strictly construed to maintain efficient and effective delivery of Commission programs and services. (Underscoring supplied)

Crystal clear from the foregoing is the fact that private practice of law by CHR lawyers is not a matter of right. Although the Commission allows CHR lawyers to engage in private practice, a written request and approval thereof, with a duly approved leave of absence for that matter are indispensable. In the case at bar, the record is bereft of any such written request or duly approved leave of absence. No written authority nor approval of the practice and approved leave of absence by the CHR was ever presented by respondent. Thus, he cannot engage in private practice. TAcCDI

As to respondent's act of notarizing documents, records show that he applied for commission as notary public on 14 November 2000, before the Regional Trial Court (RTC) of San Fernando, Pampanga, Branch 42. This was granted by RTC Executive Judge Pedro M. Sunga, Jr., on 01 December 2000. However, the CHR authorized respondent to act as notary public only on 29 October 2001. Considering that acts of notarization are within the ambit of the "term practice of law," for which a prior written request and approval by the CHR to engage into it are required, the crucial period to be considered is the approval of the CHR on 29 October 2001 and not the approval of the RTC on 04 December 2000.

Practice of law has a settled meaning. It refers to any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience. "To engage in the practice of law is to perform those acts which are characteristics of the profession. Generally, to practice law is to give notice or render any kind of service, which device or service requires the use in any degree of legal knowledge or skill." Thus, as correctly pointed out by complainants, the belated authority granted to respondent cannot be made to retroact to the notarized documents dated prior thereto.

As to the alleged falsification of DTRs, records show that respondent has been actually attending hearings in different courts as shown by the minutes of hearings and/or orders issued by different courts. Since it has been amply established that he was not properly authorized to do so as no written request by him and approval thereof of his request and of his leave of absence was made by the CHR, it is an ineluctable conclusion that he falsified his DTRs when he certified thereon that he was at the office on the same days and time. Needless to say, he could not be at two different places at the same time.

We shall now discuss respondent's authority to issue the two (2) Orders. The following are instructive:

. . . The 1987 power to investigate all forms of human rights violations involving civil and political rights. . .

But it cannot try and decide cases (or hear and determine causes) as courts of justice, or even quasi-judicial bodies do. To investigate is not to adjudicate or adjudge. Whether in the popular or the technical sense, these terms have well understood and quite distinct meanings.

"Investigate," commonly understood, means to examine, explore, inquire or delve or probe into, research on, study. The dictionary definition of "investigate" is "to observe or study closely: inquire into systematically: 'to search or inquire into: . . . to subject to an official probe . . .: to conduct an official inquiry.'" The purpose of investigation, of course, is to discover, to find out, to learn, obtain information. Nowhere included or intimated is the notion of settling, deciding or resolving a controversy involved in the facts inquired into by application of the law to the facts established by the inquiry.

The legal meaning of "investigate" is essentially the same: "to follow up step by step by patient inquiry or observation. To trace or track; to search into; to examine and inquire into with care and accuracy; to find out by careful inquisition; examination; the taking of evidence; a legal inquiry;" to "inquire; to make an investigation," "investigation" being in turn described as "(a)n administrative function, the exercise of which ordinarily does not require a hearing . . ." cEISAD

"Adjudicate," commonly or popularly understood, means to adjudge, arbitrate, judge, decide, determine, resolve, rule on, settle. The dictionary defines the term as "to settle finally (the rights and duties of the parties to a court case) on the merits of issues raised: . . to pass judgment on: settle judicially: . . . act as judge." And "adjudge" means "to decide or rule upon as a judge or with judicial or quasi-judicial powers: . . . to award or grant judicially in a case of controversy . . ."

In the legal sense, "adjudicate" means: "To settle in the exercise of judicial authority. To determine finally. Synonymous with adjudge in its strictest sense;" and "adjudge" means: "To pass on judicially, to decide, settle or decree, or to sentence or condemn. . . . Implies a judicial determination of a fact, and the entry of a judgment."

The Commission on Human Rights having merely the power "to investigate," cannot and should not try and resolve the subject matters involved in the Order dated 18 September 2001, which awarded the custody of the child to her mother, and Order dated 19 September 2001, which ordered the Rural Bank of Porac to reinstate the account of the mother of the child. These matters are undoubtedly and clearly within the judicial and adjudicatory powers of a regular court.

As to the fourth charge, suffice it to state that despite the cases filed against respondent in courts, he continued without the proper authority and approved leave of absence, to engage in the private practice of his profession as shown by certified true copies of the minutes and orders of the different courts where he attended hearings.

In ., we explained the concept of gross misconduct as any inexcusable, shameful or flagrant unlawful conduct on the part of the person concerned in the administration of justice which is prejudicial to the rights of the parties or to the right determination of the cause. Such conduct is generally motivated by a premeditated, obstinate or intentional purpose. The term, however, does not necessarily imply corruption or criminal intent.

To our mind, respondent's acts of issuing the subject orders, engaging in private practice without prior written request and authority of the CHR and duly approved leave of absence, notarizing documents even before being so authorized by the CHR and falsifying his DTRs, constitute gross misconduct for which he may be suspended, per the dictates of Section 27, Rule 138 of the

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

The question now arises as to the penalty to be imposed. HcDATC

Complainants ask that respondent be disbarred. On imposing the supreme penalty of disbarment, the rule is that disbarment is meted out only in clear cases of misconduct that seriously affect the standing and character of the lawyer as an officer of the court. While we will not hesitate to remove an erring attorney from the esteemed brotherhood of lawyers, where the evidence calls for it, we will also not disbar him where a lesser penalty will suffice to accomplish the desired end. In the case at bar, the IBP Investigating Commissioner Rebecca V. Maala recommended the suspension of respondent for two (2) years while the IBP Board of Governors recommended a lighter penalty of six (6) months suspension. Taking our cue therefrom, we find one (1) year suspension to be sufficient sanction against respondent suspension being primarily intended not as a punishment, but as a means to protect the public and the legal profession.

WHEREFORE, Atty. Roberto Ferrer, Sr., is hereby found guilty of Gross Misconduct and is hereby SUSPENDED for One (1) year from the practice of law, effective upon his receipt of this Decision. He is warned that a repetition of the same or similar acts will be dealt with more severely.

Let copies of this Decision be entered in the record of respondent as attorney and served on the IBP, as well as to the Court Administrator who shall circulate it to all courts for their information and guidance.

SO ORDERED.

Puno, Austria-Martinez, Callejo, Sr. and Tinga, JJ., concur.

Footnotes

1. Atty. Yumol retired before the filing of the complaint.

2. Rollo, p. 12.

3. Rollo, p. 13.

4. Rollo, p. 16.

5. Rollo, p. 17.

6. Annex "I" hereof; Rollo, pp. 27-28.

7. Annex "I-2" hereto; Rollo, p. 29.

8. Annexes "I-3" to "I-4" hereof; Rollo, pp. 30-31.

9. Annex "I-6" hereof; Rollo, pp. 32-33.

10. Annexes "I-7" and "I-9" hereof; Rollo, pp. 34-35.

11. Annex "I-9" hereof; Rollo, p. 36.

12. Annex "I-11" hereof; Rollo, p. 37.

13. Annexes "I-12" and "I-13" hereof; Rollo, pp. 39-40.

14. Rollo, p. 41.

15. Annex "H" hereof; Rollo, p. 22.

16. Annex "H-2" hereof; Rollo, p. 23.

17. Annex "H-2"; Rollo, p. 24.

18. Annex "H-3" hereof; Rollo, p. 25.

19. Annex "H-4" hereof; Rollo, p. 26.

20. Annex "J" hereof; Rollo, p. 42.

21. Annex "J-1" hereof; Rollo, p. 43.

22. Annex "J-2" hereof; Rollo, pp. 44-46.

23. Annex "J-3" hereof; Rollo, p. 47.

24. Annex "J-4" hereof; Rollo, p. 48.

25. Annex "J-5" hereof; Rollo, p. 49.

26. Annex "J-6" hereof; Rollo, p. 50.

27. Annex "J-7" hereof; Rollo, p. 51.

28. Annex "J-8" hereof; Rollo, p. 52.

29. Pending in different Regional Trial Courts of San Fernando, Pampanga, docketed as Criminal Case Nos. 12804 to 12812; Rollo, pp. 59-77.

30. Pending before the Regional Trial Court of Pampanga, Branch 46; Rollo, p. 78.

31. Pending with the Municipal Trial Court of San Fernando, Pampanga, Branch 1; Rollo, pp. 80-81.

32. Annexes W to II; Rollo, pp. 82-94.

33. Annex W; Rollo, p. 82.

34. Annex X; Rollo, p. 83.

35. Annex Y; Rollo, p. 84.

36. Annex Z; Rollo, p. 85.

37. Annex AA; Rollo, p. 86.

38. Annex CC; Rollo, p. 88.

39. Annex DD; Rollo, p. 89.

40. Annex EE; Rollo, p. 90.

41. Annex FF; Rollo, p. 91.

42. Annex GG; Rollo, p. 92.

43. Annex HH; Rollo, p. 93.

44. Annex II; Rollo, p. 94.

45. Rollo, p. 9.

46. Rollo, p. 102.

47. Rollo, pp. 103-106.

48. Rollo, pp. 133-138.

49.

50. Rollo, pp. 202-208, 26 May 2004.

51. Rollo, p. 201.

52. Rollo, pp. 197-198, CHR Resolution No. (III) A2002-133.

53. Rollo, p. 129.

54. Rollo, p. 130.

55. Rollo, p. 139.

56. This authority was received by CHR, Region 3 on 07 November 2001.

57. , G.R. No. 100113, 03 September 1991, 201 SCRA 210.

58. , G.R. No. 96681, 02 December 1991, 204 SCRA 483, 494-496.

59. A.C. No. 4914, 03 March 2004, 424 SCRA 199, citing ., A.M. No. MTJ-02-1431, 09 May 2003,

60. , A.C. No. 4148, 30 July 1998, 293 SCRA 331; , A.C. No. 5645, 02 July 2002, 383 SCRA 498; , A.C. No. 4766, 27 December 2002, 394 SCRA 269.

61. , A.C. No. 4215, 21 May 2001, 358 SCRA 1, citing , A.C. No. 1037, 14 December 1998, 300 SCRA 129; , A.C. No. 2024, 11 March 1996, 254 SCRA 554; , A.C. No. CBD-174, 07 March 1996, 254 SCRA 416; , A.C. No. 1129, 27 July 1992, 211 SCRA 839.

62. ., G.R. Nos. L-43301-45665, 01 April 1980, 97 SCRA 1.